Consolidated Reports & Return by the Tax Claims Bureau of Northumberland County of Properties

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Anthony Famageltto and Linda :

Famageltto, :

:

Appellants :

:

v. : No. 1271 C.D. 2014

:

County of Erie Tax Claim Bureau : Submitted: September 16, 2015

and Perry Properties, Inc. :

BEFORE: HONORABLE DAN PELLEGRINI, President Judge1

HONORABLE BERNARD L. McGINLEY, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Judge

HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE MARY HANNAH LEAVITT, Judge2

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE ANNE E. COVEY, Judge

OPINION BY

JUDGE COHN JUBELIRER FILED: January 21, 2016

Anthony Famageltto and Linda Famageltto, husband and wife, (together,

Appellants), appeal from a June 23, 2014 Order of the Court of Common Pleas of

Erie County (trial court) denying Appellants’ Petition to Set Aside Tax Sale

(Petition to Set Aside) of their home at 12769 Route 89, Wattsburg Township, Erie

1

This case was assigned to the opinion writer on or before December 31, 2015, when

President Judge Pellegrini assumed the status of senior judge.

2

This case was assigned to the opinion writer before January 4, 2016, when Judge

Leavitt became President Judge.

County (Property). On appeal, Appellants argue that the trial court erred when it

denied their Petition to Set Aside because the County of Erie Tax Claim Bureau

(Bureau) did not comply with multiple provisions of the Real Estate Tax Sale Law3

(Law) or due process. Appellants also argue that the trial court abused its

discretion when it granted the Bureau’s September 10, 2013 Petition to Waive

Personal Service (Waiver Petition). For the following reasons we affirm, in part,

reverse, in part, and remand for further proceedings.

I. NOTICE PRIOR TO AN UPSET TAX SALE

We are once again called upon to address a property owner’s right to notice

prior to a sale of property due to unpaid property taxes. “[T]he forfeiture of a

person’s property rights for failure to pay taxes is a momentous event under the

Pennsylvania and United States Constitutions.” Stanford-Gale v. Tax Claim

Bureau of Susquehanna County, 816 A.2d 1214, 1216 (Pa. Cmwlth. 2003).

Accordingly, the General Assembly established detailed notice provisions within

the Law in order to guard against the deprivation of property without due process.

Donofrio v. Northampton County Tax Claim Bureau, 811 A.2d 1120, 1122 (Pa.

Cmwlth. 2002). Because tax claim bureaus have a constitutional duty to provide

notice prior to a tax sale, tax claim bureaus bear the burden of showing strict

compliance with the notice provisions of the Law and our inquiry focuses “not on

the alleged neglect of the owner, which is often present in some degree, but on

whether the activities of the Bureau comply with the requirements of the [Law].”

Smith v. Tax Claim Bureau of Pike County, 834 A.2d 1247, 1251 (Pa. Cmwlth.

2003).

3

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

2

The notice requirements of the Law relevant to this case are as follows.

Section 602 of the Law, 72 P.S. § 5860.602, requires three different forms of

notice to property owners prior to an upset tax sale: publication, posting, and mail. 4

Appellants here challenge the Bureau’s compliance with the mailing requirements

of Section 602(e) of the Law, which provides, in relevant part:

(e) In addition to such publications, similar notice of the sale shall

also be given by the bureau as follows:

(1) At least thirty (30) days before the date of the sale, by

United States certified mail, restricted delivery, return receipt

requested, postage prepaid, to each owner as defined by this act.

(2) If return receipt is not received from each owner pursuant to

the provisions of clause (1), then, at least ten (10) days before

the date of the sale, similar notice of the sale shall be given to

each owner who failed to acknowledge the first notice by

United States first class mail, proof of mailing, at his last

known post office address by virtue of the knowledge and

information possessed by the bureau, by the tax collector for the

taxing district making the return and by the county office

responsible for assessments and revisions of taxes. It shall be

the duty of the bureau to determine the last post office address

known to said collector and county assessment office.

72 P.S. § 5860.602(e)(1), (2).

4

Section 602(a) requires that notice be published in two newspapers of general

circulation in the county and one “legal journal, if any, designated by the court for publication of

legal notices” at least thirty days prior to the scheduled sale. 72 P.S. § 5860.602(a). Section

602(e)(3) of the Law, 72 P.S. § 5860.602(e)(3), requires that the property “be posted at least ten

(10) days prior to the sale.” The posting of the property must be done in a manner that is

“reasonable and likely to inform the taxpayer, as well as the public at large, of an intended real

property sale.” In Re: Upset Sale Tax Claim Bureau McKean County on September 10, 2007,

965 A.2d 1244, 1247 (Pa. Cmwlth. 2009) (internal quotations omitted).

3

When doubt is raised concerning the receipt of a mailed notice, Section

607.1 of the Law5 requires taxing claim bureaus to conduct reasonable efforts to

discover the whereabouts of, and provide notice to, the record owners of property

scheduled to be exposed to an upset tax sale. We have summarized the efforts

required as “determining the owners of record and then to use ordinary common

sense business practices to ascertain proper addresses where notice of the tax sale

may be given.” In re Tax Sale of Real Property Situated in Jefferson Township,

828 A.2d 475, 479 (Pa. Cmwlth. 2003).

In addition to the notice requirements of Section 602 and 607.1, if the

property is occupied by the owner, Section 601(a)(3) of the Law requires tax claim

bureaus to personally serve property owners with written notice of a tax sale.

Section 601(a)(3) of the Law provides:

No owner-occupied property may be sold unless the bureau has given

the owner occupant written notice of such sale at least ten (10) days

prior to the date of actual sale by personal service by the sheriff or his

deputy or person deputized by the sheriff for this purpose unless the

county commissioners, by resolution, appoint a person or persons to

make all personal services required by this clause. The sheriff or his

deputy shall make a return of service to the bureau, or the persons

appointed by the county commissioners in lieu of the sheriff or his

deputy shall file with the bureau written proof of service, setting forth

the name of the person served, the date and time and place of service,

and attach a copy of the notice which was served. If such personal

notice cannot be served within twenty-five (25) days of the request by

the bureau to make such personal service, the bureau may petition the

court of common pleas to waive the requirement of personal notice for

good cause shown. Personal service of notice on one of the owners

shall be deemed personal service on all owners.

5

Added by Section 30 of the Act of July 3, 1986, P.L. 351, 72 P.S. § 5860.607a(a).

4

72 P.S. § 5860.601(a)(3). As such, because the Property at issue here was owner-

occupied by Appellants, the Bureau was required to comply with Section 601(a)(3)

of the Law.

With the foregoing principles in mind, we turn to the facts in the instant

matter.

II. BACKGROUND

The trial court held hearings on the matter on April 29, 2014 and June 18,

2014, which adduced the following facts. Appellants received the ten acre

Property as a wedding gift from Mrs. Famageltto’s father more than thirty years

ago. From time to time, Appellants encountered difficulties staying current on

their property tax bills and entered into two stay agreements with the Bureau as

authorized by Section 603 of the Law.6 Appellants defaulted on the agreement,

6

72 P.S. § 5860.603. Section 603 states, in relevant part:

Any owner or lien creditor of the owner may, at the option of the bureau, prior to

the actual sale . . . enter into an agreement, in writing, with the bureau to stay the

sale of the property upon the payment of twenty-five per centum (25%) of the

amount due on all tax claims and tax judgments filed or entered against such

property and the interest and costs on the taxes returned to date, as provided by

this act, and agreeing therein to pay the balance of said claims and judgments and

the interest and costs thereon in not more than three (3) instalments all within one

(1) year of the date of said agreement, the agreement to specify the dates on or

before which each instalment shall be paid, and the amount of each instalment. So

long as said agreement is being fully complied with by the taxpayer, the sale of

the property covered by the agreement shall be stayed . . . If a party to an

instalment agreement defaults on the agreement, the bureau shall not enter into a

new instalment agreement with that person within three (3) years of the default.

Id.

5

and, pursuant to Section 603 of the Law, were prohibited from entering into any

new payment agreements for three years. Appellants entered into a second stay of

sale agreement in 2011 covering tax years 2009 and 2010. The 2011 Stay

Agreement required Appellants to pay installment payments in years 2011 and

2012 to satisfy delinquent taxes for 2009 and 2010. Appellants satisfied the 2011

Stay Agreement, though remained delinquent on their property taxes for tax year

2011. Since the tax year 2011 property taxes remained unpaid, the Bureau initiated

the upset tax sale process in July 2013. On July 10, 2013, the Bureau sent two

separate notices to Appellants at the address of the Property via certified mail, both

of which were returned unclaimed.7

On July 17, 2013 the Bureau assigned Crystal Ellsworth (Server) to

personally serve Appellants with notice of the upset tax sale and to physically post

the Property. Server testified that, on August 22, 2013, she physically posted

notice on the Property next to Appellants’ mailbox, which was approximately three

feet from Route 89.8 Server then attempted to personally serve Appellants by

driving to the front of the house and knocking on the door underneath the front

porch. Server stated that she waited for approximately one minute, took pictures of

the Property, and then left.

7

Appellants do not argue that notice was not properly published prior to the upset tax

sale. Evidence was submitted that showed that the Bureau published notice of the September 30,

2013 upset tax sale of the Property, along with hundreds of other properties, in The Erie County

Legal Journal and The Erie Times-News.

8

Server’s testimony at the April 29, 2014 hearing is found at pages 321a-37a of the

reproduced record.

6

Steven Letzelter, Director of the Bureau (Director), testified that because

the notice of the upset tax sale through certified mail was returned unclaimed, the

Bureau searched for alternative addresses for Appellants in, inter alia, its internal

records, the telephone directory, the Tax Assessment Office records, the Office of

the Prothonotary, and the local tax collector records.9 The Bureau discovered an

additional address for Appellants in the telephone directory, 12801 Rt. 89,

Wattsburg, Pa., which Appellants testified was the address for Mrs. Famageltto’s

brother’s home. Then, on September 16, 2013, the Bureau sent three notices of the

September 30, 2013 upset tax sale by first class mail: one to Appellants at the

Property, and separate letters to each Appellant at the alternative address identified

in the telephone directory.

On September 10, 2013, the Bureau filed its Waiver Petition with the trial

court seeking to have the personal service of notice requirement of Section

601(a)(3) of the Law waived for Appellants and the owners of 1,700 other owner-

occupied properties scheduled to be exposed to the September 30, 2013 upset tax

sale. The Waiver Petition states:

The Server designee of Erie County has attempted to make personal

service on the owner-occupiers of property listed. . . . For various

reasons, including that the owner-occupiers have moved to parts

unknown, the house being vacant, the owner-occupants refusing to

answer the door, etc., personal service was not able to be made. . . .

[T]he [S]erver designee made a good faith attempt to make personal

service on the owner-occupiers. []All other requirements of notice,

9

Director’s testimony at the April 29, 2014 hearing is found at pages 277a-318a of the

reproduced record.

7

including publication in the newspaper and posting a sign on the

properties have been accomplished.

(Waiver Petition ¶¶ 4-6, R.R. at 221a.) The exhibit attached to the Waiver Petition

lists the index number and the record owner(s)’ name for each of the 1,700

properties for which the Bureau sought waiver, with a notation indicating there was

“No Response,” and a signed Verification by the Supervisor of the Bureau of

Revenue and Tax Claim. (Waiver Petition, R.R. at 224a-59a.) The Waiver

Petition was granted by Judge Cunningham of the trial court on the same day it

was filed, September 10, 2013. The Bureau sold the Property on September 30,

2013. The successful bidder was Perry Properties, Inc. (Purchaser).

Appellants testified at the June 18, 2014 hearing. Mrs. Famageltto testified

as follows.10 She is the person in the household that normally pays property taxes,

which she pays periodically when they are due. Mrs. Famageltto was aware that

she and her husband were behind on their taxes and that failure to pay the taxes

could result in a tax sale. However, Mrs. Famageltto did not know until the date of

the tax sale that the Property was to be sold. Appellants do occasionally receive

certified mail at the Property, but Mrs. Famageltto did not recall for sure whether

she received such a mailing in July 2013. With regard to the posting on the

Property, Mrs. Famageltto testified that she did not see a posting near their mailbox

in August 2013, but acknowledged spotting a stake lying on the ground near their

mailbox. At some point after the September 30, 2013 upset tax sale, she found

part of the posted notice in some high grass about twenty feet from their driveway

10

Mrs. Famageltto’s testimony at the June 18, 2014 hearing is found at 351a-94a of the

reproduced record.

8

along Route 89. Mrs. Famageltto surmised that a truck may have knocked down

the stake and the notice blew down the road before getting caught in the tall

grass.11

Mr. Famageltto testified at the June 18, 2014 hearing that he did not recall

receiving anything in the mail in August 2013 regarding unpaid property taxes.12

Mr. Famageltto stated that he knew there was something at the post office waiting

for the couple regarding taxes at some point earlier in the summer of 2013 and

asked Mrs. Famageltto to take care of it. He testified that his wife told him that the

notice had something to do with taxes on their home. Mr. Famageltto also

testified, after reviewing his previous deposition testimony, that the post office

once notified him that he had too much mail in the mailbox and that notice of the

tax sale could have been sitting in his mailbox for some time prior to it being

discovered.

11

On cross-examination, Mrs. Famageltto was confronted with testimony she gave at an

earlier deposition. Mrs. Famageltto was asked by counsel for Purchaser whether she testified

during that deposition that the posted notice was found in her gardening beds next to her

mailbox, and not in the tall grass down the road as she testified to at the June 18, 2014 hearing.

Mrs. Famageltto testified that she discovered the notice while working in the flower beds, but did

not actually find the notice in the flowerbeds. (Hr’g Tr. at 41, June 18, 2014, R.R. at 389a.) On

redirect, counsel for Appellants asked Mrs. Famageltto to read the deposition verbatim. Mrs.

Famageltto read the question as “when did you discover [the posted notice].” (Hr’g Tr. at 42,

June 18, 2014, R.R. at 390a.) Mrs. Famageltto’s deposition testimony focused on when the

notice was discovered and the hearing testimony focused on where the notice was discovered.

12

Mr. Famageltto’s testimony at the June 18, 2014 hearing is found at 394a-415a of the

reproduced record.

9

There is some discrepancy in the testimonies of Appellants with regard to

when they actually learned of the sale. Mr. Famageltto testified that he received

the notice dated September 11, 2013 on September 30, 2013, the morning of the

tax sale, when he retrieved some mail from his mailbox. Mr. Famageltto stated

that he immediately called Mrs. Famageltto to ask her to discover what was

happening. According to Mr. Famageltto, Mrs. Famageltto called him back within

an hour and a half of his call to inform him that the Bureau told her that the

Property was already sold at a tax sale. (Hr’g Tr. at 56-58, June 18, 2014, R.R. at

404a-06a.) However, Mrs. Famageltto testified that Mr. Famageltto called her in

the afternoon of September 30, 2013 to inquire about the notice he picked up in the

mail earlier that morning and that she did not go to the courthouse until October 1,

2013 where she learned that the Property was sold. (Hr’g Tr. at 35, R.R. at 383a.)

Mrs. Famageltto testified that because Mr. Famageltto did not call her until late in

the day on September 30, 2013, she did not have time to go to the courthouse to

inquire about the notice on that day. (Hr’g Tr. at 36, R.R. at 384a.) Both

Appellants testified that, if they knew of the tax sale earlier, they would have either

entered into a new payment agreement or borrowed money from their children to

pay the tax delinquency.

Upon review of the facts, the trial court concluded:

the agency strictly complied with the tax sale law. They crossed

every “t” and dotted every “i” with respect to the service requirements

of the statute. The [Appellants’] testimony does not credibly refute

this conclusion. As to [Appellants’] claim that the petition presented

to Judge Cunningham requesting a waiver of personal service was

deficient, this Court disagrees. It is not this Court’s role to second

guess or overrule Judge Cunningham’s ruling as it is binding on this

10

Court under the coordinate jurisdiction doctrine Commonwealth v.

Starr, 664 A[.]2d 1326, 1331-1333 (Pa[.] 1995)[.]

Sadly, the [Appellants] have lost their family home. However,

any fault lies not with the tax claim bureau, but with their failure to do

what was necessary to avoid these unfortunate circumstances. The

direct and circumstantial evidence established that they either knew of

the pending sale or intentionally avoided notice of it[.] Therefore, the

[Appellants] are not entitled to relief[.]

(Trial Ct. Op. at 5.) This appeal followed.13

III. APPELLANTS’ APPEAL

On appeal, Appellants argue that the trial court erred in denying their

Petition to Set Aside because the Bureau did not comply with various notice

requirements of the Law and due process. Specifically, Appellants contend that

the trial court erred when it denied Appellants’ Petition to Set Aside because the

Bureau did not show that it strictly complied with the requirement of Section 607.1

of the Law to conduct reasonable efforts to discover the whereabouts of

Appellants. Appellants also argue that the trial court erred by denying their

Petition to Set Aside because the Bureau did not show that it satisfied the demands

of due process by providing Appellants with actual notice of the impending tax

sale of the Property. Finally, Appellants argue the trial court erred in granting the

Bureau’s Waiver Petition on September 10, 2013 because the Bureau did not

satisfy the good cause requirement of Section 601(a)(3) of the Law and the Waiver

Petition was defective on its face because it did not aver that the Bureau waited the

13

Our review in tax sale cases “is limited to determining whether the trial court abused its

discretion, clearly erred as a matter of law or rendered a decision with a lack of supporting

evidence.” Rice v. Compro Distributing, Inc., 901 A.2d 570, 574 (Pa. Cmwlth. 2006).

11

requisite twenty-five days prior to seeking a waiver of the personal service of

notice requirement. We shall address each issue seriatim.

A. Compliance with Section 607.1 of the Law

Appellants first argue that the trial court erred and that the tax sale should be

set aside because the Bureau failed to conduct reasonable efforts to discover

Appellants’ whereabouts as required by Section 607.1 of the Law. Appellants

contend that the Bureau should have searched for Appellants’ telephone number

and called Appellants to notify them of the tax sale. Relatedly, Appellants contend

that while the Bureau sent notice to an alternative address, it sent the notice by first

class mail too late to effectuate actual notice and never attempted to personally

serve notice upon them at the alternative address.

We have said that “[w]here notice is obviously not effectively reaching the

owners of record, the taxing bureau must go beyond the mere ceremonial act of

notice by certified mail.” Jefferson Township, 828 A.2d at 479. If the certified

mailed is either returned unsigned, not returned, or returned under circumstances

raising significant doubt as to the actual receipt of the notice, Section 607.1(a) of

the Law requires taxing bureaus to conduct reasonable efforts to notify record

owners, including,

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

12

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).

Contrary to Appellants’ assertions, we conclude that the Bureau undertook

reasonable notification efforts to discover Appellants’ whereabouts as required by

Section 607.1 of the Law. After attempts to deliver the notice by certified mail

were returned to the post office unclaimed, the Bureau searched its internal records

as well as the records of the assessment office, office of deeds and wills, the

prothonotary’s office, and the local tax collector. (Notes of Additional Notification

Efforts, R.R. at 215a-16a.) The Bureau also searched the telephone directory and

the “Polk Directory” for an alternate address. (Notes of Additional Notification

Efforts, R.R. at 215a-16a.) The Bureau discovered an alternate address for

Appellants in the telephone directory. The alternate address, 12801 Route 89,

Wattsburg, Pa., is located adjacent to the Property and is owned by Mrs.

Famageltto’s brother. On September 11, 2013, the Bureau mailed one notice of the

tax sale to Appellants at the Property, and two separate letters to each Appellant at

12801 Route 89, Wattsburg, Pa. (Ten Day Notices, R.R. 217a-19a; Proof of

Mailing, R.R. at 220a.) These efforts were reasonable and satisfy the requirements

of Section 607.1 of the Law. The Law does not require tax claim bureaus to place

a phone call to a property owner prior to a tax sale or to personally serve notice

upon any other address other than the address of the Property.14 We note that the

address of the Property was the correct address for Appellants.

14

Appellants cite to a footnote in our decision in Fernandez v. Tax Claim Bureau of

Northampton County, 925 A.2d 207, 214 n.17 (Pa. Cmwlth. 2007), as support for their argument

that Section 607.1 of the Law requires tax claim bureaus to call a number listed for a property

(Continued…)

13

Insofar as Appellants argue the timeliness of the first class mailing did not

afford them sufficient time to pay their delinquent property taxes, the Bureau

mailed the notice on September 11, 2013, more than 10 days before the date of the

sale in accordance with Section 602(e)(2) of the Law. Mr. Famageltto conceded

during his June 18, 2014 testimony that it was possible that the notice was in the

mailbox for some time and that he received a notice from the post office that his

mailbox was too full. (Hr’g Tr. at 64, June 18, 2014, R.R. at 412a.) Although

Appellants testified that they did not receive the notice until the morning of the tax

sale, the cause of the delay was not attributable to the date of mailing, but rather to

Appellants’ delay in retrieving mail from their mailbox.

B. Compliance with Due Process

Appellants next contend that, in addition to satisfying the notice

requirements of the Law, due process requires tax claim bureaus to provide

property owners with actual notice of pending tax sales, if reasonably possible.

Appellants argue that the trial court erred by blaming them for the lack of notice

when due process could have been satisfied if the Bureau sent notice by mail

earlier, called Appellants, or attempted to personally service notice upon them in

the evening.

owner in the telephone book. Appellants misconstrue our holding in that case. The tax sale in

Fernandez was set aside because the tax claim bureau failed to search the records of the tax

assessment office. Id. at 214. Nowhere in Fernandez, or anywhere else in our case law, do we

hold that Section 607.1 of the Law requires tax claim bureaus to call a property owner to confirm

the whereabouts of a property owner or to provide notice of a tax sale.

14

A fundamental requirement of due process is that notice be “reasonably

calculated, under all the circumstances, to apprise interested parties of the

pendency of the action and afford them an opportunity to present their objections.”

Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). Our

Supreme Court has applied this principle to the tax sale context as requiring tax

claim bureaus to undertake “reasonable effort[s]” “to provide actual notice” of the

tax sale. Tracy v. County of Chester, Tax Claim Bureau, 489 A.2d 1334, 1338 (Pa.

1985) (emphasis in original). Appellants are correct that “a taxing authority’s strict

compliance with the [notice requirements of the Law] does not necessarily satisfy

the demands of due process.” Geier v. Tax Claim Bureau of Schuylkill County,

588 A.2d 480, 483 (Pa. 1991). Due process requires that the “practicalities and

peculiarities of the case” are considered and given their “due regard.” Mullane,

339 U.S. at 314.

The cases cited by Appellants where courts of this Commonwealth have held

that strict compliance with the notice requirements of the Law is insufficient to

satisfy the demands of due process involve circumstances where the tax claim

bureau failed to send notice to all of the property owners. See, e.g. Geier, 588

A.2d at 482 (holding that notwithstanding technical compliance with the notice

requirements of the Law, an individual who had an interest in the property via a

partnership agreement was entitled to mailed notice of the tax sale). We have said

that the “essence” of these cases is that “due process requires [tax claim] bureaus . .

. to conduct reasonable investigations to ascertain the identity and whereabouts of

the latest owners of record of property subject to an upset sale for purposes of

15

providing notice to that party.” Farro v. Tax Claim Bureau of Monroe County, 704

A.2d 1137, 1142 (Pa. Cmwlth. 1997).

Appellants neither argue that the notices were sent to the incorrect owners of

the Property, nor do they argue that the notices were sent to an incorrect address.

It is undisputed that notice was sent to Appellants at their correct address and that

Appellants are the record owners of the Property. The only justification for

Appellants not receiving notice on time to prevent the tax sale is that Appellants

failed to retrieve their mail or see the notice posted next to their mail box. Due

process does not require tax claim bureaus to conduct extraordinary efforts to

provide notice when a property owner’s failure to retrieve his or her mail caused

the lack of actual notice. By strictly complying with the notice requirements of the

Law and satisfying its obligations under Section 607.1 of the Law to discover the

whereabouts of, and provide notice to, the record owners of the Property, the

Bureau provided notice to Appellants in a manner reasonably calculated to provide

Appellants notice of the September 30, 2013 upset tax sale and, therefore, satisfied

the demands of due process.

C. Waiver of Personal Service of Notice

Finally, Appellants argue that the Waiver Petition did not satisfy the “good

cause” requirement of Section 601(a)(3) of the Law. According to Appellants, the

Waiver Petition was not supported by facts showing when service was attempted,

on how many occasions, or who attempted service, and the only justification listed

for the waiver was that there was no response. Appellants also argue that the

Waiver Petition is defective on its face insofar as it fails to show that the Bureau

16

waited the required twenty-five days after personal service of notice was requested

prior to seeking a waiver from the trial court.

The Bureau and Purchaser respond by arguing that the trial court correctly

waived the personal service of notice requirement of Section 601(a)(3) of the Law

because the Bureau complied with the requirements to obtain such a waiver and

Appellants were not home when Server attempted to effectuate personal service.

Purchaser also argues that the trial court was correct to not second guess Judge

Cunningham’s decision to grant the Bureau’s Waiver Petition under the coordinate

jurisdiction doctrine.

Section 601(a)(3) of the Law requires tax claim bureaus to provide owner-

occupants with personal service of written notice of a pending tax sale at least ten

days prior to the tax sale. Section 601(a)(3) demonstrates the General Assembly’s

“heightened concern for owner occupants being divested of the very property in

which they are residing.” Matter of Tax Sales by Tax Claim Bureau of Dauphin

County, 651 A.2d 1157, 1159 (Pa. Cmwlth. 1994). We have said that, “[b]y

enacting [S]ection 601[(a)(3)], the [General Assembly] expressed a desire to

provide a qualitatively different type of notice to an owner occupant and afford

such owner with increased protection by way of additional notice.” McKelvey v.

Westmoreland County Tax Claim Bureau, 983 A.2d 1271, 1274 (Pa. Cmwlth.

2009). Yet, the General Assembly understood that, in certain circumstances, tax

claim bureaus should not be required to incur the high costs associated with

ensuring that notice was received by each owner-occupant personally and included

a provision within Section 601(a)(3) of the Law allowing the personal service of

17

notice requirement to be waived for “good cause shown.” The General Assembly

decided to place a burden on the taxing bureaus to provide justification for a

waiver and to give trial courts the task of balancing the goal of providing

heightened notice to owner-occupants against the taxing bureaus’ obligations to

collect property taxes. See In Re: Consolidated Reports et al (Neff), ___ A.3d ___,

___ (Pa. Cmwlth., No. 752 C.D. 2014, filed January 21, 2016) (en banc), slip op. at

20 (reasoning that whether good cause under Section 601(a)(3) of the Law exists is

a matter left to the trial court’s sound discretion and requires trial courts to

“consider[] the facts of this case in light of the fundamental purposes of the Law”).

The trial court here did not independently examine whether the Bureau

showed good cause to waive the personal service of notice requirement under

Section 601(a)(3) of the Law. Instead, the trial court found that it was not its “role

to second guess or overrule Judge Cunningham’s ruling as it [was] binding on [the]

Court under the coordinate jurisdiction doctrine.” (Trial Ct. Op. at 5.) Whether a

trial court is obligated to uphold, on the basis of the coordinate jurisdiction

doctrine, an earlier order waiving personal service of notice pursuant to Section

601(a)(3) of the Law is a matter of first impression for this Court.

The coordinate jurisdiction doctrine states that “judges of [equal] jurisdiction

sitting in the same case should not overrule each others’ decisions.”

Commonwealth v. Starr, 664 A.2d 1326, 1331 (Pa. 1995). In Starr, our Supreme

Court reasoned that the coordinate jurisdiction rule fits squarely under the larger,

“law of the case” doctrine and merged the two doctrines “in an effort to

standardize and streamline the law to which [Pennsylvania] courts must refer when

18

considering prior rulings of courts of coordinate jurisdiction . . . .” Id. at 1333.

The law of the case doctrine “refers to a family of rules which embody the concept

that a court involved in the later phases of a litigated matter should not reopen

questions decided by another judge of that same court or by a higher court in the

earlier phases of the matter.” Id. at 1331. The goal of the doctrine is: “(1) to

protect the settled expectations of the parties; (2) to insure uniformity of decisions;

(3) to maintain consistency during the course of a single case; (4) to effectuate the

proper and streamlined administration of justice; and (5) to bring litigation to an

end.” Id. Departure from the law of the case doctrine

is allowed only in exceptional circumstances[,] such as where there

has been an intervening change in the controlling law, a substantial

change in the facts or evidence giving rise to the dispute in the matter,

or where the prior holding was clearly erroneous and would create a

manifest injustice if followed.

Id. at 1332.

Under these circumstances, we do not believe the coordinate jurisdiction rule

precluded the trial court from examining whether there was good cause to waive

the personal service of notice requirement. Judge Cunningham was presented with

the Waiver Petition on September 10, 2013, requesting a waiver of personal

service of notice for 1,700 property owners. The Bureau provided its justification

for waiver of personal service for 1,700 properties it considered owner-occupied,15

which includes an averment that “server designee made a good faith attempt to

15

We recognize that tax records will often not indicate whether the properties are owner-

occupied, have been rented, or used as a second home.

19

make personal service on the owner-occupiers” and that “[a]ll other requirements

of notice . . . have been accomplished.” (Waiver Petition ¶¶ 5-6, R.R. at 221a.)

Upon receiving the Waiver Petition, Judge Cunningham made an initial

determination of good cause to waive personal service of notice based on the

averments in the Waiver Petition and the attachments thereto, which are clothed in

a presumption of regularity that attaches to all official acts. See Hughes v.

Chaplin, 132 A.2d 200, 202 (Pa. 1957) (stating that “a prima facie presumption of

the regularity of the acts of public officers exists until the contrary appears . . . . In

tax sales it is particularly suitable”) (internal quotations omitted). Based on the

evidence presented to Judge Cunningham, and given the presumption of regularity

that attaches to the Bureau’s activities, we cannot say that the Waiver Petition was

facially defective or that Judge Cunningham abused his discretion in finding that

the Bureau showed good cause for receiving the waiver of personal service of

notice at that time. However, this proceeding was necessarily one-sided because

the property owners had not been found or become part of the process.

It was only later in the statutory tax sale process that Appellants could

become involved. Pursuant to Section 607(b) of the Law,16 within thirty days of

16

72 P.S. § 5860.607(b). Section 607(b) provides:

The bureau shall, at the expense of the county, within ten (10) days after

confirmation nisi of the consolidated return, publish a general notice once in a

newspaper of general circulation published in the county, and in the legal journal,

if any, designated by rules of court for the publication of legal notices, stating (1)

that the consolidated return of the bureau with respect to any such sale for taxes

has been presented to the court, (2) giving the date of confirmation nisi and (3)

that objections or exceptions thereto may be filed by any owner or lien creditor

within thirty (30) days after the court has made a confirmation nisi of the

consolidated return or that the return will be confirmed absolutely.

(Continued…)

20

the trial court confirming the tax sale nisi, a property owner may challenge the

regularity of the sale through filing exceptions. Appellants filed exceptions, and

their challenge rebuts the presumption of regularity of the Bureau’s activities.

Appellants’ exceptions are resolved through a confrontational process where the

burden is initially on the Bureau to show that it strictly complied with the notice

requirements of the Law. Jefferson Township, 828 A.2d at 478-79. It is not until

this point, in the context of the adversarial proceeding, that evidence can be

presented and tested, that a determination as to whether there was in fact good

cause to waive the personal service of notice requirement for that property should

be made, at the same time all the other notice requirements are tested.

Allowing review at this hearing effectuates the legislative intent of the

personal service of notice requirement for owner-occupied properties and is

consistent with the purpose of the coordinate jurisdiction rule. Upon receipt of a

petition to waive the personal service of notice requirement of Section 601(a)(3),

the trial judge may exercise discretion and find that good cause was shown

sufficient to permit the waiver of personal service of notice without further, and

often unnecessary, costs to tax claim bureaus and the courts. For example, in this

case, the petition included 1,700 properties. However, once a property owner

challenges the tax sale, and tax claim bureaus are required to meet the burden of

proving that compliance with the notice requirements of the Law in an adversarial

Id. The statutory appeal process of Section 607(b) of the Law “is not the exclusive method to

challenge the notice. Courts of equity continue to have the power to inquire into the issue even

after the judicial confirmation of a tax sale.” M.C. and E.K. Lees, Inc. v. Capenos, 119 A.3d

1092, 1099 (Pa. Cmwlth. 2015) (emphasis in original).

21

proceeding, there is opportunity to test whether the heightened requirements for

notice to owner-occupants were in fact met. Thus, the legislative intent to provide

additional protections for owner-occupants is fulfilled in a cost-effective manner,

which enables a full hearing and determination on the evidence at the time when a

judge can be presented with all of the evidence. Because this second judge can be

presented with additional and different evidence from both parties regarding the

tax claim bureau’s efforts to comply with the Law’s personal service of notice

requirement, the second judge is not deciding the same questions as the first judge

and the coordinate jurisdiction doctrine should not apply. Therefore, because the

coordinate jurisdiction rule did not preclude the trial court from considering

whether the Bureau satisfied the good cause shown requirement of Section

601(a)(3) of the Law based on the evidence, testimony, and arguments made by the

parties in this matter,17 we reverse the trial court’s Order and remand for the trial

court to make this determination based on the record evidence.

IV. CONCLUSION

For the foregoing reasons, we reverse the trial court’s Order only insofar as

it upholds the September 10, 2013 order of Judge Cunningham granting the

Bureau’s Waiver Petition and remand for a determination on whether the Bureau

17

Appellants do not argue that the Bureau failed to wait the requisite twenty-five days

before seeking a waiver of the personal service of notice requirement of Section 601(a)(3) of the

Law. Appellants’ argument in this regard is simply that the Waiver Petition is facially defective

because it does not show that the Bureau waited the required time period. As stated above, we

conclude that the Bureau’s Waiver Petition was sufficient under the circumstances to warrant

Judge Cunningham’s Order. We note that challenges alleging that a tax claim bureau did not

comply with the twenty-five day waiting period, like challenges to the “good cause”

requirement, may be addressed in conjunction with a property owner’s other challenges to a tax

claim bureau’s notice efforts.

22

satisfied the requirements of Section 601(a)(3) of the Law. We discern no error in

the remaining portions of the trial court’s Order.

________________________________

RENÉE COHN JUBELIRER, Judge

Judge Leavitt concurs in the result only.

23

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Anthony Famageltto and Linda :

Famageltto, :

:

Appellants :

:

v. : No. 1271 C.D. 2014

:

County of Erie Tax Claim Bureau :

and Perry Properties, Inc. :

ORDER

NOW, January 21, 2016, the June 23, 2014 Order of the Court of Common

Pleas of Erie County (trial court), entered in the above-captioned matter, is

REVERSED to the extent that it upholds the September 10, 2013 order granting

the County of Erie Tax Claim Bureau’s (Bureau) Petition to Waive Personal

Service, and this matter is REMANDED for a determination as to whether the

Bureau satisfied the requirements of Section 601(a)(3) of the Real Estate Tax Sale

Law, 72 P.S. § 5860.601(a)(3). The trial court’s June 23, 2014 Order is affirmed in

all other respects.

Jurisdiction relinquished.

________________________________

RENÉE COHN JUBELIRER, Judge