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