Opinion

AES Drilling Fluids, LLC v. Clearfield County TCB

Court
Commonwealth Court of Pennsylvania
Filed
Jun 9, 2025
Status
Unpublished
On the bench
Fizzano Cannon
Cited by
0 cases
Authority
More cited than 36.2%

upholding sale where posting was “taped to a tree near the [owner’s] mailbox located across the road from the [p]roperty and not on the [p]roperty itself”

How later courts described this case

  • upholding sale where posting was “taped to a tree near the [owner’s] mailbox located across the road from the [p]roperty and not on the [p]roperty itself”

Written by the judges who cited it.

The opinion

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

AES Drilling Fluids, LLC, :

Appellant :

:

v. :

: No. 583 C.D. 2023

Clearfield County Tax Claim Bureau : Argued: April 8, 2025

BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE LORI A. DUMAS, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE FIZZANO CANNON FILED: June 9, 2025

AES Drilling Fluids, LLC (AES) appeals from the May 4, 2023, order

of the Court of Common Pleas of Clearfield County (trial court). The trial court’s

order denied AES’s objections to the tax sale of property previously owned by AES

in Clearfield County (County). Upon review, we reverse.

I. Factual & Procedural Background

On October 13, 2022, the Clearfield County Tax Claim Bureau

(Bureau) filed a consolidated return of sale of properties for unpaid tax claims with

the trial court. Reproduced Record (R.R.) at 1a-4a. The filing stated that various

properties in the County had unpaid liens and claims for the 2020 tax year and that

a tax sale for those properties had been scheduled for September 16, 2022. Id. at 2a.

The Bureau averred that it had advertised the sale in three local newspapers in

August 2022 and attached proof of those publications. Id. The Bureau stated that it

had informed property owners of the impending sale by sending them notices via

“certified mail, restricted delivery, return receipt requested” and posting notices of

the sale on the properties. Id. at 2a-3a. The sale had taken place as advertised. Id.

at 3a. The filing stated that on October 3, 2022, post-sale notice was provided to the

owners that the properties were sold and advising the owners of their right to object

to the sale within 30 days after the trial court’s conditional confirmation nisi of the

consolidated return. Id.

A parcel owned by AES was listed at a delinquency price of $1,011.10

and sold for $3,000.00 to Property Development, LLC, which intervened in this

matter and joins the Bureau’s brief to this Court. R.R. at 14a. The October 3, 2022,

notice to AES regarding that property was sent to AES at P.O. Box 3075, McKinney,

TX 75070 (the McKinney address). Id. at 36a.

On October 20, 2022, the trial court issued an order confirming nisi the

sales. R.R. at 35a. On November 16, 2022, AES filed a timely objection and petition

to set aside the sale on the basis that the Bureau failed to comply with the notice and

service provisions of the Real Estate Tax Sale Law (RETSL),1 which establishes the

procedures for collection of taxes through upset sales and judicial sales and for

objecting to such sales. R.R. at 37a. Specifically, AES averred that the Bureau

failed to properly notify AES of the underlying claim for tax delinquency via “notice

of return and claim” because the notices were sent to the McKinney address, which

is no longer correct. Id. at 39a-47a & 57a. AES also alleged that the Bureau failed

to properly notify it by mail of the sale and did not comply with the RETSL’s

requirements for public posting of the notice of sale at the property. Id.

AES attached to its objection copies of documents it stated it received

after requesting the Bureau’s file on this matter. These included a green certified

1

Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. §§ 5860.101-.803.

2

mail card from the McKinney address that appears to have been signed as received

on April 16, 2021; a May 2022 notice of the September 2022 sale sent by the Bureau

to the McKinney address; the notarized affidavit of Holly McGovern (McGovern),

who posts the County’s property notices, attesting that she personally served and

posted the notice on July 13, 2022;2 a piece of returned first class mail sent by the

Bureau to the McKinney address in August 2022 before the sale; a green certified

mail receipt and green card indicating receipt of an item mailed from Clearfield to

the McKinney address on September 30, 2022, about two weeks after the sale; and

a piece of returned first class mail sent by the Bureau to the McKinney address on

September 30, 2022. Id. at 57a-62a.

The trial court held a hearing on January 12, 2023. Heather Clark

(Clark), an administrative tax assistant with the Bureau, testified that on May 6,

2022, the Bureau issued a notice of tax sale for the relevant parcel. R.R. at 127a.

She confirmed that such notices were to be sent by certified mail with restricted

delivery and a signature upon receipt. Id. She acknowledged that in preparation for

the hearing, she did not find a signed green certified mail return card for the May

2022 notice of sale in the file of this matter. Id. at 128a. She stated, however, that

the mailing was not returned and that tracking information showed that it was

delivered to the McKinney address. Id. The record includes the May 2022 notice,

which was addressed and sent to AES via restricted delivery at the McKinney

address, and the corresponding postal service tracking printout reflecting delivery

and pick up at the McKinney post office on May 16, 2022. Id. at 79a-81a. Clark

noted that the file did include a signed and returned green card for the post-sale

notice also sent to the McKinney address. Id. at 129a.

2

In McGovern’s subsequent hearing testimony summarized below, she acknowledged that

she did not actually physically post the notice on the property on that date.

3

Clark testified that the Bureau gets the names and addresses of

taxpayers from the county assessor’s office. R.R. at 132a. Her office relied on that

information and she did not personally cross-reference the addresses. She confirmed

printouts from the assessor’s office for two AES-owned properties in the County

that had different addresses: the subject parcel showed the McKinney address for

AES while the other parcel showed AES’s mailing address to be P.O. Box 460389,

Houston, TX 77056 (Houston address). Id. at 133a; see also id. at 91a-92a. Another

printout showed that local property taxes on the subject parcel were billed by the

County tax collector to the incorrect McKinney address but local school taxes on the

subject parcel were billed to the correct Houston address. Id. at 136a; see also id. at

100a-101a. The record also includes a copy of an April 1, 2021, school tax bill for

2020 for the parcel with the office building on it; the bill is addressed to the correct

address in Houston and was paid with an AES check dated April 30, 2021. Id. at

104a-05a.

Clark acknowledged that the Bureau’s notices regarding the September

2022 sale were not sent to the Houston address. Id. She confirmed that in August

2022, a 10-day notice of the sale had been sent by first class mail to the McKinney

address but was returned undelivered. Id. at 164a & 166a. She was unaware if any

additional efforts were made by the Bureau in August to notify AES of the upcoming

sale and no documentation of such efforts was in the file for this matter. Id. at 164a-

65a. However, she stated that if the initial notice of sale sent in May 2022 had been

returned undelivered, the Bureau would routinely have followed up with additional

notice efforts. Id. at 166a.

During the hearing, the Bureau’s counsel acknowledged that with

regard to the initial notice and return of the underlying claim, the Bureau “does not

4

have a copy of the actual mailing. Only a green card returned, but I will state we do

not have a copy of the actual return itself to indicate what it stated on it as far as the

tax claim statute would require.” R.R. at 152a-53a.

Lisa Conrad (Conrad), the County’s assessor, testified that if the tax

collector determines that a property’s owner is at a different address from the

assessor’s office records, the collector should notify the assessor’s office of the

change, but this is not always the case. R.R. at 139a-40a & 142a-43a. She stated

that if a piece of mail is signed for as delivered to the recipient, the Bureau will not

have a reason to think there might be another address. Id. at 140a. She confirmed

that a “notice of return and claim” for delinquent 2020 school taxes for the other

AES property was sent to the Houston address on April 1, 2021, and the amount due

was paid on April 30, 2021. Id. at 141a; see also id. at 104a-05a. She stated,

however, that if the assessor’s office receives information regarding a new address

for a specific parcel, it cannot use that address to change the information in its

records for another parcel. Id. at 143a.

McGovern stated that she received the assignment to post the subject

parcel and prepared an affidavit after she visited the property with an unnamed

associate on July 13, 2022. R.R. at 144a-45a. When they approached the property,

“it didn’t look like there was, like it was anybody working out of there.” Id. She

knocked on the door of an office building, which was not located on the parcel at

issue, and a man came out and asked if he could help them; she told him she was

there to post a property sale notice because the taxes were delinquent and the

property would be sold if the taxes were not paid. Id. at 146a-47a; see also id. at

155a-57a (testimony by AES’s witness that the parcel with the office building is not

the parcel subject to the sale). He took the notices from her, so she admitted that she

5

was not able to physically post them, although she later attested in her affidavit that

she had done so. Id. at 146a-48a; see also id. at 89a.

Derick Weitoish (Weitoish), AES’s regional operations manager,

testified that although he was not there when McGovern visited, he knew she had

gone to the office building, which is not located on the parcel subject to sale. R.R.

at 155a-57a. He acknowledged that someone standing with Route 322 behind them

and looking up Poor Farm Lane would see the office building and that the subject

parcel was behind it; a visitor would have to pass by the building to reach the subject

parcel. Id. He works at the building and “recall[ed] receiving the posting” after

McGovern’s visit because it “was placed on the front doors.” Id. at 157a. Pursuant

to questioning by another attorney, he reiterated that he “did receive the notice as it

was posted to the front door.” Id. at 158a.

Kim Canny (Canny) is AES’s accounting supervisor and deals with the

agents that handle property taxes for AES in its different locations. R.R. at 160a-

61a. Until 2018, AES used an agent located at the McKinney address, but it

currently uses an agent located at the Houston address. Id. The change in agents

was made before she started with AES and she did not personally advise the County

or its tax entities of the new address. Id. AES has no access to its tax agent’s post

office boxes and only pays the bills it receives from the agent. Id. at 162a. AES’s

former agent in McKinney would not have had authority to accept any documents

on AES’s behalf after the change to the new agent in Houston. Id. at 162a-63a.

After the hearing, the parties submitted briefs, and on May 4, 2023, the

trial court issued an order denying AES’s objection and petition to set aside the sale.

R.R. at 171a. On May 9, 2023, the trial court issued its opinion. Id. at 180a-86a.

The trial court noted deficiencies in the Bureau’s formal noticing and posting of the

6

sale but concluded that AES had actual notice of the impending sale in September

2022 and that the public had reasonable notice of the sale. Id. AES appealed to this

Court.

II. Issues

AES asserts several issues, which we reorder for clarity.3 AES first

argues that because it was not properly served with the underlying notice of return

and claim, the claim was never made absolute. AES’s Br. at 9-17. Next, AES avers

that it also was not properly notified of the impending sale. Id. at 21-27. Lastly,

AES maintains that the physical posting of the notice of sale was deficient because

it was not on the specific parcel subject to the sale but at the other AES property

where the office building was located. Id. at 17-21.

III. Discussion

A. Service of Notice Making the Claim Absolute

Section 306(a) of the RETSL states that each year, between January 1st

and April 30th, tax collectors must provide their governmental unit’s tax claim

bureau with a return form listing the properties with delinquent taxes from the

previous year. 72 P.S. § 5860.306(a). The bureau must notify the owners as

provided for in Section 308(a) of the RETSL:

Not later than the thirty-first day of July of each year, the

bureau shall give only one notice of the return of said taxes

and the entry of such claim in one envelope for each

delinquent taxable property, by United States registered

mail or United States certified mail, return receipt

3

This Court’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. Rivera, 171 A.3d 1, 4 n.7 (Pa. Cmwlth. 2017).

7

requested, postage prepaid, addressed to the owners at the

same address listed on the form returned by the tax

collector for taxes that are delinquent. . . . If no post office

address of the owner is known or if a notice mailed to an

owner at such last known post office address is not

delivered by the postal authorities, then notice as herein

provided shall be posted on the property affected. . . . Each

mailed and posted notice shall[] (1) show all the

information shown on the claim entered, (2) state that if

payment of the amount due the several taxing districts for

said taxes is not made to the bureau on or before the thirty-

first day of December next following, and no exceptions

thereto are filed, the said claim shall become absolute, (3)

state that on July first of the year in which such notice is

given a one (1) year period for discharge of tax claim shall

commence or has commenced to run, and that if full

payment of taxes is not made during that period as

provided by this act, the property shall be advertised for

and exposed to sale under this act, and (4) state that there

shall be no redemption after the actual sale.

72 P.S. § 5860.308(a) (emphasis added).

On the first day of January in the year “following the notice

hereinbefore prescribed, if the amount of the tax claim referred to in the notice has

not been paid, or no exceptions thereto filed, the claim shall become absolute” and

the property may be subject to sale. 72 P.S. § 5860.311. Once the claim becomes

absolute, an owner may seek to reopen the claim only on the basis of payment or

“failure to receive notice.” 72 P.S. § 5860.314(e). Section 314(e) is the exclusive

procedure for challenging defective notice of delinquency claims and is distinct from

the procedures for challenging the validity of a tax sale, which will be addressed in

the next section. Id.; Zelno v. Lyons, 245 A.3d 1185, 1186-87 (Pa. Cmwlth. 2021).

“The Bureau bears the burden of showing adequate notice under

whatever RETSL provision is applicable[.]” In re Tax Claim Bureau of Columbia

Cnty., 329 A.3d 811, 816 (Pa. Cmwlth. 2025). In George v. Delaware County Tax

8

Claim Bureau, 323 A.3d 106 (Pa. Cmwlth. 2024), this Court held that the purpose

of a tax sale “is not to strip an owner of his property but rather to ensure that the tax

on the property is collected.” Id. at 110. To that end, “the notice provisions of the

[RETSL] are to be strictly construed” and “failure by a tax claim bureau to comply

with all the statutory notice requirements ordinarily nullifies a sale.” Id.

In Zelno, the bureau’s 2017 certified mail notice to Zelno of a

delinquency claim for 2016 was returned unsigned. 245 A.3d at 1186. In July 2018,

the bureau’s mailed notice of the scheduled September 2018 sale was likewise

returned unsigned, but the bureau personally served Zelno with a notice of the sale

and posted the notice at the property. Id. In 2019, after the property was sold, Zelno

filed a petition to set aside the sale, averring that even though she had proper notice

of the sale, it was invalid because she had not been notified of the underlying

delinquency claim and, therefore, the claim had never become absolute. Id.

This Court noted in Zelno that in light of the July 2018 pre-sale personal

service and posting, Zelno had actual notice of the September 2018 sale before it

occurred but failed to use that time to challenge the underlying tax claim based on

Section 314(e). Instead, she waited until after the sale and then sought to invalidate

it, which was improper. We distinguished those facts from Watson v. Ciaffoni, 122

A.2d 56 (Pa. 1956), and In re Consolidated Return of Sale of Properties for

Delinquent Taxes by Fayette County Tax Claim Bureau v. Nestor, 416 A.2d 636 (Pa.

Cmwlth. 1980), where sales were set aside because the owners were not notified of

either the underlying claim or the sale. Zelno, 245 A.3d at 1187-88.

Here, with regard to the Bureau’s pre-sale compliance with Section

308(a), the relatively sparse record does not include the County tax collector’s return

to the Bureau for the 2020 delinquency claims regarding the subject parcel, which

9

would have been produced and provided to AES in 2021.4 However, in May 2022,

the Bureau issued a notice of the impending September 2022 sale to AES at the

McKinney address with a “restricted delivery” tracking designation ending in 2466.

R.R. at 57a & 79a-80a. The record includes a screenshot showing that this mail item

was picked up at a post office in McKinney on May 16, 2022, but does not include

a certified mail receipt or signed green card for the item, and Clark testified that she

did not have one in the file for this matter. Id. at 81a & 128a. The record also

includes a first-class mail envelope returned as undelivered in August 2022, which

Clark identified as the 10-day pre-sale notice sent to the McKinney address. Id. at

64a, 164a & 166a.

The trial court cited Section 308(a) but did not opine on whether the

Bureau’s notice to AES of the underlying tax claim complied with that provision.

R.R. at 185a-86a. However, the trial court relied on Zelno to conclude that AES had

actual notice of the September 2022 sale after McGovern’s July 2022 visit, which,

the trial court opined, cured any notice defects. Id. In the trial court’s view, AES

had two months before the sale to resolve or challenge the underlying claim, and its

attempt to set aside the sale after failing to do so was improper. R.R. at 185a-86a.

AES maintains that the trial court erred because the Bureau’s failure to

properly notify AES of the underlying tax claim as required by Section 308(a)

precluded the claim from becoming perfected or made “absolute,” and the

subsequent sale was invalid regardless of any subsequent or actual notice AES had

of the sale before it occurred. AES’s Br. at 9-13. AES argues that Zelno is

4

No testimony was taken as to what happened in this matter prior to 2022. We note,

however, the presence in the record of a green certified mail card that appears to have been signed

and returned from the McKinney address on April 16, 2021, notwithstanding AES’s claim that it

stopped using an agent in McKinney in 2018. R.R. at 60a & 160a-61a.

10

distinguishable because Zelno waited until March 2019 to challenge the previous

September 2018 tax sale, whereas AES filed its objection on the basis of defective

notice of the underlying claim as soon as it learned of the sale and within 30 days of

the trial court’s order conditionally confirming nisi the September 2022 sale. Id. at

15. In the alternative, AES avers that Zelno was incorrectly decided because Section

311 of the RETSL states that a claim cannot be made absolute until the January

“following the notice hereinbefore prescribed” in Section 308(a), which presupposes

the validity of that notice, and because Section 314(e) of the RETSL does not qualify

or limit an owner’s ability to challenge a claim on the basis of defective notice of

that claim. Id. at 16.

The Bureau acknowledges that the notice of return and claim was not

in its file for this matter but notes, as its counsel did at the hearing, that the file does

include a returned green card from April 2021 that can be associated with certified

mailing of the notice of return and claim to AES, so the Bureau maintains that it

reasonably proceeded on the basis that Section 308(a) notice was proper and that the

claim became absolute before the parcel became subject to sale. Bureau’s Br. at 5.

Primarily, however, the Bureau alleges that, as the trial court found, AES had actual

notice of the impending sale when McGovern left the sale notices in July 2022 and

because Weitoish, an AES manager at the location, testified that he had seen the

notices on the front door of the main office building on a parcel adjoining the subject

property. Id. at 5-8.

As stated above, the Bureau must prove adequate notice under RETSL.

Tax Claim Bureau of Columbia Cnty., 329 A.3d at 816. Section 308(a) requires that

the notice of return and claim be sent to the owner “by United States registered mail

or United States certified mail, return receipt requested, postage prepaid.” 72 P.S.

11

§ 5860.308(a). The Bureau’s counsel admitted that the notice of return and claim

was not in the Bureau’s file for this matter and the only evidence that the notice was

sent to AES in 2021, when the 2020 delinquencies would have been processed, is a

certified mail green card that was signed and returned to the Bureau from the

McKinney address on or about April 16, 2021. R.R. at 60a. However, the record

does not include the corresponding certified mail receipt for that card or the actual

notice of return and claim that was allegedly sent, so there is no way to contextualize

that card other than its presence in the Bureau’s file for the subject parcel.

As noted, the trial court did not expressly determine that the Bureau

failed to comply with Section 308(a) prior to scheduling the tax sale in May 2022.

The record in this regard, consisting only of the 2021 green card and the Bureau’s

counsel’s admission at the hearing that the Bureau did not keep a copy of the actual

mailing purportedly associated with that card, suggests that the Bureau in fact did

not meet its burden to comply with Section 308(a) prior to scheduling the sale. This

is problematic in light of AES’s having promptly paid delinquent 2020 school taxes

on the adjoining parcel in April 2021 when it received notice at the correct Houston

address. See R.R. at 104a-05a. We conclude that the trial court’s determination that

AES had either RETSL-compliant or actual notice of the impending sale was

unsupported by the record.5

The record shows the Bureau did not meet its burden to prove its

compliance with Section 308(a)’s requirements to notify AES of the delinquencies

prior to scheduling the sale because the Bureau could not produce evidence showing

5

As discussed further in the next section, this Court’s precedents arguably present some

inconsistencies in analyzing whether actual notice can cure a failure to comply strictly with all of

the notice requirements of the RETSL, but as neither compliance with RETSL nor actual notice

has been established in this case, we need not consider or reconcile any of these apparent

inconsistencies.

12

that the notice of filing of return and entry of claim had been mailed by registered

and certified mail or had been duly received by AES. Because the Bureau did not

meet its burden and the record does not support the trial court’s conclusion that AES

had actual notice of the delinquencies prior to the sale, the trial court erred in

determining that the delinquency had properly been made absolute.

The Bureau’s failure to comply with the notice requirement to make

the delinquency absolute is dispositive of this matter. However, for the purpose of

completeness, we address AES’s remaining assertions of error.

B. Service of the Tax Sale Notice

Section 602(e)(1) and (2) of the RETSL states that in addition to

publishing the notice of sale in appropriate news outlets, tax claim bureaus must also

notify owners of scheduled sales, 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.

13

72 P.S. § 5860.602(e)(1)(2) (emphasis added).6 Section 607.1(a) sets forth the

bureau’s duties in this regard in greater depth:

(a) When any notification of a pending tax sale or a tax

sale subject to court confirmation is required to be mailed

to any owner, mortgagee, lienholder or other person or

entity whose property interests are likely to be

significantly affected by such tax sale, and such mailed

notification is either returned without the required

receipted personal signature of the addressee or under

other circumstances raising a significant doubt as to the

actual receipt of such notification by the named addressee

or is not returned or acknowledged at all, then, before the

tax sale can be conducted or confirmed, the bureau must

exercise reasonable efforts to discover the whereabouts of

such person or entity and notify him. The bureau’s efforts

shall include, but not necessarily be restricted to, a search

of current telephone directories for the county and of the

dockets and indices of the county tax assessment offices,

recorder of deeds office and prothonotary’s office, as well

as contacts made to any apparent alternate address or

telephone number which may have been written on or in

the file pertinent to such property. When such reasonable

efforts have been exhausted, regardless of whether or not

the notification efforts have been successful, a notation

shall be placed in the property file describing the efforts

made and the results thereof, and the property may be

rescheduled for sale or the sale may be confirmed as

provided in this act.

72 P.S. § 5860.607a(a) (emphasis added).7

As with Section 308(a), strict compliance with these notice

requirements is normally required. We acknowledge that there have been instances

in which this Court has excused defects in a tax claim bureau’s compliance with the

RETSL’s formal notice requirements where the bureau proved the owner had actual

6

Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. § 5860.602(e)(1)(2).

7

Added by the Act of July 3, 1986, P.L. 351, 72 P.S. § 5860.607a(a).

14

prior notice of the sale. See, e.g., Zelno, 245 A.3d at 1188; In re Consol. Reps. &

Return by the Tax Claim Bureau of Northumberland Cnty. of Props., 132 A.3d 637,

647-48 (Pa. Cmwlth. 2016) (Neff); Casaday v. Clearfield Cnty. Tax Claim Bureau,

627 A.2d 257, 259-60 (Pa. Cmwlth. 1993). These decisions appear to conflict with

this Court’s recent decisions in George and Sale of Tax Delinquent Property on

October 19, 2020, 308 A.3d 890 (Pa. Cmwlth. 2024), which suggest that any failure

to comply with the statutory notice requirements of the RETSL is a fatal defect that

actual notice cannot cure. However, we need not reconcile any apparent conflict in

the instant case, as the record indicates AES received neither RETSL-compliant

notice nor actual notice of the impending tax sale.

Here, the record includes the Bureau’s May 2022 notices of sale to

AES. R.R. at 57a & 79a. These notices, which were sent to the McKinney address,

clearly did not go to the proper Houston address of AES’s current tax agent. Id. The

Bureau admittedly did not have a returned certified mail green card for these notices.

Id. at 128a. However, tracking information showed that one notice was at least

delivered to the McKinney post office and was picked up there by an unidentified

individual on May 16, 2022. Id. at 81a. The 10-day presale notice, apparently sent

to the McKinney address by first class rather than certified mail, was returned

undelivered in August 2022. Id. at 61a.

Clark, a tax assistant for the Bureau, acknowledged that the assessor’s

office had both the McKinney and Houston addresses for AES’s properties in the

County. R.R. at 132a-33a. Moreover, the assessor’s office had the Houston address

as well as the McKinney address for the subject property, as school tax bills for the

parcel were being sent to Houston even though County tax bills were being sent to

McKinney. Id. at 100a-01a & 182a-83a. Clark had not followed up to determine

15

which was the correct address and could not say that anyone else at the Bureau did

so either; she merely noted that even though the Bureau did not receive a green card

back from the May 2022 notice, it had not been returned undelivered, so she believed

the Bureau was not expressly on notice that the McKinney address was incorrect.

Id. at 164a-66a. Conrad, the County assessor, confirmed that if a piece of mail is

signed for as delivered, the County would not have a reason to think there might be

another address and that even if the County has different addresses for the same

owner of multiple properties, it cannot change the address of one property to

conform with the address for another property. Id. at 140a & 143a. Of course, this

testimony did not account for the Bureau’s failure to recognize the availability of the

correct Houston address here, where it was already in use for assessment of school

taxes on the very property at issue.

The record also includes McGovern’s testimony that in July 2022, when

she visited the property, an unnamed individual at AES’s offices took the notices

from her. R.R. at 144a-45a. Weitoish, AES’s regional operations manager for the

Clearfield location, stated that he had personally received and seen the notices on

the front door of the main office building on property adjacent to the subject parcel.

Id. at 155a-57a. However, Weitoish was not asked whether he advised AES’s

corporate offices in Texas of the sale and the record includes no other evidence

indicating that he was an authorized agent of AES or that AES itself ever actually

learned of the impending sale before it occurred. Weaver, 324 A.3d at 715-16.

The trial court correctly acknowledged AES’s argument that when the

May 2022 notice of sale sent via certified mail by the Bureau to the incorrect

McKinney address did not result in a returned signed green card and the subsequent

10-day notice mailed first-class in August to the McKinney address was returned as

16

undeliverable as addressed, the Bureau’s obligation to conduct further efforts to get

the correct information was triggered. R.R. at 182a-83a. The trial court also noted

that, based on the assessor’s evidence, the subject parcel had the incorrect McKinney

address for property taxes but the correct Houston address for school taxes; this put

the Bureau on notice that at least two addresses for AES were of record for the

subject parcel. Id.; see also id. at 100a-01a.

However, the trial court concluded that AES “received actual notice

through personal service and therefore the formal requirements of notice did not

need to be strictly met.” R.R. at 171a. The trial court cited McGovern’s testimony

and stated that AES had 64 days from receiving the actual notice of the sale but did

not contest the underlying claim or move to resolve the delinquency until after the

sale. Id. at 181a & 183a. Relying on Zelno, the trial court upheld the sale. Id. at

186a.

AES acknowledges that McGovern handed the notices of sale to an

“alleged agent of AES at a building located on an adjacent parcel” and that there is

“admittedly, testimony by an individual [Weitoish] who stated that he knew about

the Tax Sale as a result of” McGovern’s visit and interaction with the individual who

answered the door of the building. AES’s Br. at 5 & 20. However, AES does not

admit that it had actual notice of the sale and maintains that the Bureau’s failure to

comply with Sections 602(e) and Section 607.1(a) should nullify the sale. AES’s

Br. at 16 & 22-27. The Bureau maintains that its compliance was sufficient because

the May 2022 notice to the McKinney address was not returned undelivered,

McGovern’s purported personal service on AES in July 2022 cured any defects in

its formal notice, and the sale was valid because AES had two months prior to the

sale to remedy the delinquency. Bureau’s Br. at 10-12. We disagree.

17

On this record, we cannot say that the Bureau strictly or even

substantially complied with the pre-sale notice requirements of Section 602(e).

Based on the tracking information in the record, the May 2022 notice may have been

delivered to the (incorrect) McKinney address, but the Bureau did not receive a

signed certified mail green card in return. Then, the August 2022 10-day notice to

the McKinney address was returned undelivered.

These events obliged the Bureau to conduct further efforts as set forth

in Section 607.1(a), which states that when a notice is “not returned or acknowledged

at all,” the bureau “must exercise reasonable efforts to discover the whereabouts of

such person or entity and notify him” and must do so “before the sale can be

conducted.” 72 P.S. § 5860.607a(a); see also George, 323 A.3d at 110-12

(concluding that bureau’s failure to conduct reasonable efforts to determine owner’s

whereabouts invalidated sale). Even a minimal effort, such as contact with the

assessor’s office, would have revealed to the Bureau that for the subject parcel, the

County had two Texas addresses for AES, which in turn should have triggered an

inquiry to determine which address was correct and then to re-send the Section

602(e) notice of sale to that address in or around May 2022. The Bureau’s witness,

Clark, admitted that this was not done. R.R. at 164a-66a.

As with Section 308(a), we find the Bureau’s lack of due diligence and

failure to establish compliance with Section 602(e) problematic, particularly in light

of AES’s having promptly paid delinquent 2020 school taxes on the adjoining parcel

when it received notice at the correct Houston address in April 2021. See R.R. at

104a-05a. The Bureau’s failure to strictly, or even substantially, comply with

Sections 602(e) and 607.1(a) is troubling since the scheduling of the tax sale started

a clock ticking towards divestiture of AES’s property in the absence of proper notice

18

and, as noted, the purpose of these notice provisions is to ensure that the tax is

collected, not to sell off properties. George, 323 A.3d at 110.

Although the Bureau failed to show compliance with Sections 602(e)

and 607.1(a), the Bureau suggests that its noncompliance should be excused on the

basis that AES had actual notice of the impending sale. Even if we were to accept

the Bureau’s assertion that such a cure is possible, we conclude that the trial court’s

determination that AES had actual notice of the impending sale was unsupported by

the record, as explained above.

As noted, AES’s location in Texas makes this case unlike Cruder v.

Westmoreland County Tax Claim Bureau, 861 A.2d 411, 416 (Pa. Cmwlth. 2004),

and Sabbeth v. Tax Claim Bureau of Fulton County, 714 A.2d 514 (Pa. Cmwlth.

1998), where an employee signed for the mailed notices, but the owners were

physically present and would or should have personally seen the notices one way or

another, including the notices posted on the subject property. 861 A.2d at 416; 714

A.2d at 517. It is also unlike the cases where record evidence established either

directly or circumstantially that the owner, rather than an employee, had actual

notice of the impending sale. See Zelno, 245 A.3d at 1186; Neff, 132 A.3d at 643;

Casaday, 627 A.2d at 249.

The record here shows the Bureau did not prove its compliance with

Section 602(e) or Section 607.1(a). Decisions of this Court where actual notice has

seemingly overcome some defects in the statutory notice offer no help to the Bureau

here because, in any event, the Bureau also did not prove that AES received actual

notice of the scheduled sale so as to provide an ostensible cure for the Bureau’s

noncompliance with the law. Because the Bureau did not meet its burden and the

19

record does not support the trial court’s conclusion that AES had actual notice of the

delinquencies prior to the sale, the trial court erred in this regard.

C. Public Posting of the Notice of Sale

In addition to publication and proper noticing by mail, Section

602(e)(3) of the RETSL requires that “[e]ach property scheduled for sale shall be

posted at least ten (10) days prior to the sale.” 72 P.S. § 5860.602(e)(3). As defined,

posting requires the following:

(1) In the case of property containing assessed

improvements, affixing notices as required by this act:

(i) To a portion of an improvement situated to be

reasonably conspicuous to both the owner and the

general public.

(ii) To a stake secured on or adjacent to the property,

within approximately twenty-five (25) feet of any

entrance to the property in a manner situated to be

reasonably conspicuous to both the owner and the

general public, in cases in which subclause (i) does

not apply.

(iii) Adjacent to the property line, on a stake secured

on or adjacent to the property in a manner

reasonably conspicuous to the owner and the

general public in cases in which subclauses (i) and

(ii) do not apply.

(2) In the case of property containing no assessed

improvements, affixing notices as required by this act:

(i) To a stake secured on or adjacent to the property,

within approximately twenty-five (25) feet of any

entrance to the property in a manner situated to be

reasonably conspicuous to both the owner and the

general public.

20

(ii) Adjacent to the property line, on a stake secured

on or adjacent to the property in a manner

reasonably conspicuous to the owner and the

general public in cases in which subclause (i) does

not apply.

(3) In the event that a reasonably conspicuous location in

accordance with clause (1) or (2) is not available, placing

any alternative, similarly durable notification of

proceedings under this act at a location on or near the

property and reasonably conspicuous to the owner and the

general public.

72 P.S. § 5860.102. The “method chosen must be reasonable and likely to inform

the public and the taxpayer of an intended real property sale.” Cruder, 861 A.2d at

416. Posting “is important for third parties whose interest may be affected, such as

mortgagors or other lien holders,” and because “it advances the goal of increasing

the number of bidders for the property. With more bidders, a higher sale price,

presumably, will be realized, which benefits the delinquent taxpayer.” In re Tax

Sale of 2003 Upset, 860 A.2d 1184, 1188-89 (Pa. Cmwlth. 2004).

As with defects in mailed notices, a defect in posting will normally

invalidate a tax sale, even when the property owner has received actual notice of the

sale. “The reason for such a result is that the posting notice serves the function of

notifying the general public, as well as the owner, of a tax sale.” In re Somerset

Cnty. Tax Sale of Real Est. Assessed in the Name of Tub Mill Farms, Inc., 14 A.3d

180, 183 (Pa. Cmwlth. 2010). Further, the question is not whether the notice was

actually viewed by members of the public, but rather, whether the notice was placed

in a location where it reasonably could be viewed by members of the public under

the specific circumstances of the case; thus, the bureau is not required to “foresee

and guard against every possible ‘what if’” associated with the posting. Id. at 184-

85.

21

Posting generally must be done on the subject property, but the statute

provides some flexibility if that is not feasible, and posting may still be sufficient as

long as it is “likely to be seen by the public.” 2003 Upset, 860 A.2d at 1189-90

(upholding sale where posting was “taped to a tree near the [owner’s] mailbox

located across the road from the [p]roperty and not on the [p]roperty itself”). If the

owner can see the posting, then it may also be visible to the public, which would

help to satisfy the RETSL. Id. However, simply handing the notice to a property

owner will be grounds for rejecting a sale. See In re Sale of Real Est. by Montgomery

Tax Claim Bureau for 1997 Delinquent Taxes, 836 A.2d 1037, 1042 (Pa. Cmwlth.

2003).

Here, McGovern testified that in July 2022, she told the individual who

answered the door at AES’s building that she was there to post the notices. R.R. at

146a-48a. She had only two copies and he took them both, so she was not able to

go behind the building to the subject parcel and physically post the notices there. Id.

at 148a. She was not asked why she did not get more notices and return the next day

to perfect the posting or why, instead, she falsely attested that she had posted the

subject property. Weitoish testified that he was not present at the encounter but

acknowledged that he saw the notice “placed on the front doors of the main office

building” facing Route 322. Id. at 157a. Subsequently, under questioning from a

different attorney, he restated that he “did receive the notice as it was posted to the

front door” of the building. Id. at 158a. He confirmed that the office is on a different

parcel but acknowledged that the subject parcel is directly behind the main office

building, is “visible” from the building, and that someone on the way to the subject

parcel would drive or walk past the building. Id. at 157a.

22

The trial court concluded that McGovern’s efforts were sufficient

because even if she had been able to post the notices on the subject parcel, “it would

be no different if the representative [who answered the door] had waited for []

McGovern to leave and then removed the notices from the property.” R.R. at 184a.

We cannot agree with this reasoning. There is always the possibility that someone

may improperly remove a posted notice. That did not abrogate the Bureau’s legal

duty to post it. It is also troubling that McGovern attested to posting the property

when she admittedly did not do so on that day and never returned to do so.

The trial court then addressed Weitoish’s testimony, concluding that

posting the notice on the main building’s front door would have been reasonable

because “the public would traverse by it” to get to the subject parcel behind the

building. Id. The trial court did not address the apparent discrepancy between

McGovern’s testimony that she was unable to physically post the notices when she

visited and Weitoish’s testimony that he saw the notices because they were posted

on the front door of the main office building. However, Weitoish made that

statement twice, so the trial court may have inferred that between McGovern’s visit

and Weitoish’s arrival, someone put the notices on the door. However, that does not

establish the reasonableness or sufficiency of the Bureau’s posting.

AES avers that the Bureau’s posting was deficient because it was not

specifically placed on the subject property. AES’s Br. at 19-21. AES relies on 1997

Delinquent Taxes to add that McGovern did not post the notices at all, but admittedly

only handed them over to the individual who answered the door (or when he took

them from her). Id. at 21. The Bureau emphasizes Weitoish’s testimony that the

notices were ultimately posted on the building front doors and maintains that even

though they were not on the subject parcel, they were “reasonably conspicuous” to

23

both AES, in light of Weitoish’s repeated testimony that he saw them there after

McGovern’s visit, and, by extension, the public. Bureau’s Br. at 8-9. The Bureau

relies on 2003 Upset for its position that a posting will be sufficient if it is reasonably

visible. Id. at 9-10.

Concerning the RETSL’s definition of posting, the evidence here does

not state whether the subject parcel has assessed improvements, such as buildings or

structures, so as to be within subsection (1). See 72 P.S. § 5860.102. Subsection (2)

states that in the absence of assessed improvements, posting may be done on a stake

“on or adjacent to the property” as long as it is done “in a manner reasonably

conspicuous to the owner and the general public.” Id. If the notice cannot be affixed

on a stake, subsection (3) allows that it may alternatively be posted by “placing any

alternative, similarly durable notification of proceedings under this act at a location

on or near the property and reasonably conspicuous to the owner and the general

public.” Id. Thus, the statutory language provides for some flexibility in the location

of a posting; the overriding requirement is reasonable visibility, both to the owner

and to the public.

Here, McGovern admitted that she did not physically post the sale

notices on the subject parcel as required by Sections 102 and 602(e)(3); this

conflicted with her affidavit attesting that she had done so. The Bureau, which bore

the burden of proof, did not establish, or even assert, that after the first visit, it

attempted to perfect the posting, such as by sending McGovern out the following

day with additional notices to post on stakes on or adjacent to the subject parcel. As

with Sections 308(a), 602(e)(1)(2), and 607.1(a), the Bureau’s failure to comply with

the statute’s posting requirements is troubling.

24

Our case law on posting, consistent with the language of the statute

itself, reflects that it is fact-specific and that a certain degree of flexibility is

permitted so long as the posting is reasonably conspicuous to the owner and public.

See Somerset Cnty. Tax Sale, 14 A.3d at 183. For example, in 2003 Upset, the

posting had been “taped to a tree near the [owner’s] mailbox located across the road

from the [p]roperty and not on the [p]roperty itself.” 860 A.2d at 1186. The owner

saw the posting when he visited the property five days before the sale with his

daughter, who pointed it out. Id. This Court did not specifically parse the posting

definition but pointed out that Section 602 “does not explicitly state that a notice

must be posted on the property subject to sale” as long as it is “reasonable and likely

to inform the taxpayer” and public of the impending sale. Id. at 1188. We concluded

that the posting, although not directly on the subject property, was “likely to be seen”

by the owner and public, as shown by the fact that the owner himself, who had

evidently received none of the mailed notices, personally saw the posted notice prior

to the sale. Id. at 1190. As such, the posting was reasonable. Id. at 1191.

Here, as discussed above, prior to McGovern’s visit, the Bureau did not

strictly, or even substantially, comply with its notice mailing obligations. It provided

no evidence of the initial Section 308(a) notice of delinquency and when it did not

receive a certified mail green card back from the Section 602(e) notice of sale, it did

no more on the basis that tracking information showed the mailing had been

delivered and picked up at the McKinney address by someone. Section 607.1(a)

states that if the sale notice “is not returned or acknowledged at all,” the bureau must

engage in reasonable efforts to determine the owner’s whereabouts, including

searching telephone directories and the resources of other county offices before

holding the sale. 72 P.S. § 5860.607a(a). Those efforts would have revealed the

25

correct Houston address and AES’s prompt payment of its taxes when it received

notices at the Houston address. The Bureau admittedly did none of this prior to

McGovern’s visit in July 2022, which she admitted did not result in an actual

posting.

Moreover, the notice was not placed on the subject parcel. The Bureau

did not offer any evidence that it could not post on the subject parcel, but maintained

that the notice could be seen publicly on the front doors of the office building on the

neighboring parcel. However, the Bureau, which had already failed to comply with

the RETSL’s mailing requirements, did not establish that AES in Texas, which is

the actual owner and taxpayer, could have seen the posting prior to the sale. Because

the Bureau did not meet its burden and the record does not support the trial court’s

conclusion that the Bureau properly conducted the posting, the trial court erred in

this regard.

IV. Conclusion

Based on the foregoing discussion, we conclude that AES’s objections

to the trial court’s May 4, 2023, order upholding the Bureau’s sale of the subject

parcel previously owned by AES are valid. As such, the trial court erred in denying

the objections, and its order upholding the tax sale must be reversed.

__________________________________

CHRISTINE FIZZANO CANNON, Judge

26

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

AES Drilling Fluids, LLC, :

Appellant :

:

v. :

: No. 583 C.D. 2023

Clearfield County Tax Claim Bureau :

ORDER

AND NOW, this 9th day of June, 2025, the May 4, 2023, order of the Court of

Common Pleas of Clearfield County is REVERSED.

__________________________________

CHRISTINE FIZZANO CANNON, Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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