Petition for Writ of Certiorari — Fred Lohr Fouse, et ux., Petitioners v. Saratoga Partners L.P., et al.

Supreme Court briefFeb 24, 2021

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------FRED LOHR FOUSE AND JOLENE K. FOUSE,

Petitioners,

v.

SARATOGA PARTNERS L.P.,

AND

HUNTINGDON COUNTY TAX CLAIMS BUREAU,

Respondents.

---------------------------------♦--------------------------------On Petition For A Writ Of Certiorari

To The Supreme Court Of Pennsylvania

---------------------------------♦--------------------------------PETITION FOR A WRIT OF CERTIORARI

---------------------------------♦--------------------------------GENNADY L. LEBEDEV

Counsel of Record

SAM HELMI

LEBEDEV, MICHAEL & HELMI, APLC

10999 Riverside Dr., Suite 201

Studio City, CA 91602

(818) 757-7677

gennady@lmhlawyers.com

Counsel for Petitioners

RICHARD J. GERACE

GERACE LAW OFFICE

1515 Market St., Suite 1200

Philadelphia, PA 19102

(215) 854-6345

rgerace14@comcast.net

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTION PRESENTED

Does Pennsylvania law violate the Due Process

and Equal Protection Clauses of the Fourteenth

Amendment to the United States Constitution by

denying homeowners in the least populous counties

any right to redeem their home after a municipal tax

sale to pay delinquent property taxes while allowing

homeowners in the most populous counties a three

month to nine month right of redemption?

ii

PARTIES TO THE PROCEEDING

Petitioners Fred Lohr Fouse (incorrectly identified

in the state courts as “Fred Lohr”) and his wife Jolene

K. Fouse, were Petitioners in the Huntingdon County

Court of Common Pleas, Huntingdon, Pennsylvania

seeking the right to redeem their residential property

which was sold at a Municipal tax sale to pay for delinquent taxes. As such the Fouses were Petitioners in the

common pleas court, Appellants in the intermediate

appellate court for this matter, i.e., the Pennsylvania

Commonwealth Court, and Appellants in the Pennsylvania Supreme Court.

Saratoga Partners L.P., was the high bidder at the

tax sale and was therefore named in the common pleas

court action as a Respondent, Appellee in the Commonwealth Court, and Appellee in the Pennsylvania Supreme Court.

The Huntingdon County Tax Claims Bureau was

the government entity through which the Municipal

tax sale was conducted. As such, the Bureau was

named as a Respondent in the common pleas court,

Appellee in the Commonwealth Court, and Appellee in

the Pennsylvania Supreme Court.

iii

RELATED CASES

Fouse et al., Petitioners v. Saratoga Partners, L.P., and

Huntingdon County Tax Claims Bureau, Respondents,

Huntingdon County Court of Common Pleas, No.

CP-31-CV-1701-2016, Order entered October 23, 2017.

Fouse et al., Appellants v. Saratoga Partners, L.P., and

Huntingdon County Tax Claims Bureau, Appellees,

Commonwealth Court of Pennsylvania, 204 A.3d 1028,

judgment and order entered March 7, 2019.

Fouse et al., Appellants v. Saratoga Partners, L.P., and

Huntingdon County Tax Claims Bureau, Appellees,

Pennsylvania Supreme Court No. 67 MAP 2019 judgment and order entered October 1, 2020.

iv

TABLE OF CONTENTS

Page

QUESTION PRESENTED...................................

i

PARTIES TO THE PROCEEDING ......................

ii

RELATED CASES ...............................................

iii

TABLE OF CONTENTS ......................................

iv

TABLE OF AUTHORITIES .................................

vi

PETITION FOR A WRIT OF CERTIORARI .......

1

OPINIONS BELOW.............................................

1

JURISDICTION ...................................................

2

STATUTES AND CONSTITUTIONAL PROVISIONS INVOLVED...........................................

3

INTRODUCTION AND STATEMENT OF THE

CASE ................................................................

3

REASONS FOR GRANTING THE PETITION .....

10

I.

There is No Rational Basis to Support the

Laws that Grant Homeowners in the Most

Populous Counties Three Months to Nine

Months to Redeem their Home after a Municipal Tax Sale but Deny Homeowners in

the Least Populous Counties Any Right of

Redemption Whatsoever ............................ 10

CONCLUSION..................................................... 22

v

TABLE OF CONTENTS – Continued

Page

APPENDIX

Opinion, Pennsylvania Supreme Court No. 67

MAP 2019 (October 1, 2020) ............................ App. 1

Order and Opinion, Commonwealth Court of

Pennsylvania (March 7, 2019) ....................... App. 30

Order, Court of Common Pleas of Huntingdon

County, Pennsylvania (October 23, 2017) ..... App. 55

vi

TABLE OF AUTHORITIES

Page

CASES

Am. Exp. Travel Related Serv’s, Inc. v. SidamonEristoff, 669 F.3d 359 (3d Cir. 2012) .......................11

Appeal of Gault, 33 Pa. 94 (Pa. 1859) .........................15

Bull v. United States, 295 U.S. 247 (1935) .................16

Cedarbrook Realty, Inc. v. Nahill, 399 A.2d 374

(Pa. 1979) .................................................................16

City of Cleburne v. Cleburne Living Center, 473

U.S. 432 (1985) ........................................................11

Cty. Concrete Corp. v. Town of Roxbury, 442 F.3d

159 (3d Cir. 2006) ....................................................11

Cty. of Sacramento v. Lewis, 523 U.S. 833 (1998) ......11

Fouse v. Saratoga Partners, L.P. and Huntingdon County Tax Claim Bureau, 204 A.3d 1028

(Pa.Cmwlth. 2019)........................................... passim

Fred Lohr and Jolene K. Fouse v. Saratoga Partners, L.P. and Huntingdon County Tax Claim

Bureau, No. 67 MAP 2019 (Pa. 2020) ...... 1, 8, 12, 14, 18

Hill v. Borough of Kutztown, 455 F.3d 225 (3d

Cir. 2006) .................................................................11

Hurtado v. California, 110 U.S. 516 (1884) ................11

Mathews v. Lucas, 427 U.S. 495 (1976) ......................11

Pace Resources, Inc. v. Shrewsbury Twp., 808

F.2d 1023 (3d Cir. 1987) ..........................................12

Romer v. Evans, 517 U.S. 620 (1996) ..........................11

Shapiro v. Thompson, 394 U.S. 618 (1969)........... 14, 21

vii

TABLE OF AUTHORITIES – Continued

Page

United States v. Carolene Products Co., 304 U.S.

144 (1938) .......................................................... 14, 21

Village of Willowbrook v. Olech, 528 U.S. 562

(2000) .......................................................................10

STATUTES

Federal

U.S. Const. amend. XIV § 1 ................................ passim

28 U.S. Code § 1257(a) ..................................................3

State

Pa. Const. Art. I, § 1 ............................................ 8, 9, 13

Pa. Const. Art. I, § 26 ....................................................8

Pa. Const. Art. III, § 20 .................................................9

Municipal Claims and Tax Liens Act (“MCTLA”)

53 P.S. §§ 7101-7505 ........................................ passim

Real Estate Tax Sale Law (“RETSL”) 72 P.S.

§§ 5860.101-5860.803 ...................................... passim

1

PETITION FOR A WRIT OF CERTIORARI

Fred Lohr Fouse and Jolene K. Fouse, husband

and wife, petition for a writ of certiorari to review the

judgment of the Pennsylvania Supreme Court which

held that denying individuals any right at all to redeem residential property in the least populous counties of Pennsylvania while allowing individuals in the

most populous counties three to nine months to redeem, is permissible under the due process and equal

protection clauses of the Fourteenth Amendment to

the United States Constitution.

---------------------------------♦---------------------------------

OPINIONS BELOW

The Pennsylvania Supreme Court’s opinion affirming the Pennsylvania Commonwealth Court order

upholding the Huntingdon County Court of Common

Pleas order denying the “Petition to Redeem Property

Sold at Tax Sale” is reported at Fred Lohr and Jolene

K. Fouse v. Saratoga Partners, L.P. and Huntingdon

County Tax Claim Bureau, No. 67 MAP 2019, October

1, 2020, and reproduced at App. 1-29. The Pennsylvania Commonwealth Court opinion and order upholding

the Huntingdon County Court of Common Pleas order

denying the “Petition to Redeem Property Sold at Tax

Sale” is reported at Fouse v. Saratoga Partners, L.P.

and Huntingdon County Tax Claim Bureau, 204 A.3d

1028 (Pa.Cmwlth. 2019) and reproduced at App. 30-54.

---------------------------------♦---------------------------------

2

JURISDICTION

This case involves the Pennsylvania Supreme

Court’s interpretation of the due process and equal

protection clauses of the Fourteenth Amendment to

the United States Constitution. On October 1, 2020,

the Pennsylvania Supreme Court upheld a state law

that prohibits homeowners in Pennsylvania’s lesser

populated counties, Huntingdon County in particular,

any right to redeem their home once it is sold by the

municipality to collect delinquent property taxes,

while a nearly identical law allows homeowners in the

state’s two most populous counties a three to ninemonth right of redemption. The high court concluded

“the dichotomy between those landholders . . . does not

violate equal protection, under either the federal or

state constitution.”

Because the state’s highest court has rendered a

decision that determines “right, privilege, or immunity” under the federal constitution, this Court has the

jurisdiction to review the decision:

Final judgments or decrees rendered by the

highest court of a State in which a decision

could be had, may be reviewed by the Supreme Court by writ of certiorari where the

validity of a treaty or statute of the United

States is drawn in question or where the validity of a statute of any State is drawn in

question on the ground of its being repugnant

to the Constitution, treaties, or laws of the

United States, or where any title, right, privilege, or immunity is specially set up or

3

claimed under the Constitution or the treaties

or statutes of, or any commission held or authority exercised under, the United States.

28 U.S. Code § 1257(a) – State courts; certiorari.

---------------------------------♦---------------------------------

STATUTES AND CONSTITUTIONAL

PROVISIONS INVOLVED

This Petition involves the due process and equal

protection clauses in the Fourteenth Amendment to

the United States Constitution:

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof,

are citizens of the United States and of the

state wherein they reside. No state shall make

or enforce any law which shall abridge the

privileges or immunities of citizens of the

United States; nor shall any state deprive any

person of life, liberty, or property, without due

process of law; nor deny to any person within

its jurisdiction the equal protection of the

laws.

U.S. Const. amend. XIV § 1.

---------------------------------♦---------------------------------

INTRODUCTION AND

STATEMENT OF THE CASE

The Pennsylvania Supreme Court granted the

Fouses discretionary review to consider whether they,

as individual homeowners in the state’s low population

4

Huntingdon County, deserve the same right to redeem

their home after a tax delinquency sale as other homeowners in the state’s two most populous counties,

namely Philadelphia County and Allegheny County,

which includes Pittsburgh.

According to the Pennsylvania Supreme Court the

answer is “No”. App. 2.

Pennsylvania is divided into 67 counties. The 67

counties are grouped by population into essentially

eight county classes with the most populous county,

Philadelphia County, classified as a county of the first

class. Allegheny County, which includes Pittsburgh, is

a county of the second class. App. 4. Less populous

counties are grouped into successive county classes

from counties of the third class down to counties of the

eight class. App. 13. Huntingdon County where the Petitioners live is a sixth-class county. App. 3.

Tax sales of real estate are governed under two

state laws. Philadelphia and Allegheny County are

governed under the Municipal Claims and Tax Liens

Act (“MCTLA” or the “Tax Lien Act”), 53 P.S. §§ 71017505. App. 4. Under the Tax Lien Act and modification

thereto, an individual has the right to redeem real

property for at least three months and as much as nine

months after a municipal tax sale of property to pay

for delinquent taxes. App. 4-5. Generally, the other

counties classes, including Huntingdon County, are

governed by Real Estate Tax Sale Law (“RETSL” or

“Tax Sale Act”), 72 P.S. §§ 5860.101-5860.803. App. 4.

5

The Tax Sale Act prohibits any redemption of property

after a municipal tax sale. App. 1-2.

Petitioners fell behind in their residential tax payments for 2014 and 2015 owing approximately

$16,000. The property, which they owned since the late

70s and 80s, was subsequently listed and sold by the

Huntingdon County Tax Bureau for approximately

$26,000. App. 2. Three months after the sale in December 2016, the Fouses filed a “petition to redeem property sold at tax sale” under MCTLA, the Tax Lien Act,

53 P.S. § 7293 in the Huntingdon County Court of

Common Pleas, even though Huntington County, as a

sixth-class county, is governed by the Tax Sale Act Real

Estate Tax Sale Law or RETSL, 72 P.S. §§ 5860.1015860.803 which prohibits post-sale redemption. App. 2.

Still, the Fouses asserted a right to redeem under the

Tax Lien Act. However, the common pleas court denied

the petition. App. 55.

The Fouses appealed to the Commonwealth Court.

A divided three-judge panel of the Commonwealth

Court affirmed the common pleas court order denying

the Fouses’ petition to redeem. See Fouse v. Saratoga

Partners, L.P. and Huntingdon County Tax Claim Bureau, 204 A.3d 1028, 1039 (Pa.Cmwlth. 2019)

McCullough, J., dissenting. App. 30-54. However, the

dissent in the Commonwealth Court noted, “If the

property was located in Philadelphia County or Allegheny County, counties that proceed solely and exclusively under . . . [MCTLA], the Fouses would have

possessed a right to redeem their property ‘within nine

months . . . upon payment of the amount bid at such

6

sale[.]’ However, the Fouses’ place of residence and the

property is sited in Huntingdon County, a sixth-class

county, and . . . [RETSL] applies to this county.” App. 3.

The dissent finds the prohibition of any right to

redeem for the Fouses “a violation of the principles of

equal protection” noting: “Our case law indicates that

there are no significant substantive or procedural differences between the RETSL and the MCTLA, except

for the automatic right to redemption in the MCTLA

[for the most populous counties].” See Fouse, 204 A.3d

1028, 1040. App. 49. The dissent concluded that the

right of redemption is “a personal, individual right that

provides a homeowner with an extra or final chance to

reclaim property following the completion of an upset

tax sale or judicial sale”. Id., 204 A.3d at 1041.

Moreover, the dissent was “unable to decipher how

the exclusion of a right of redemption from the RETSL

bears a reasonable relationship to a legitimate state

purpose, or how the denial of this right promotes the

purpose of classification based upon county size.” App.

53. According to the dissent: “It should be beyond dispute that, no matter where a homeowner resides, that

homeowner shares the same interest in redemption as

any other homeowner located anywhere else in the

Commonwealth.” App. 52-53. Thus, with the Commonwealth Court majority upholding the prohibition

against redemption, the Fouses petitioned the Pennsylvania Supreme Court for discretionary review,

which was granted.

7

In the Pennsylvania Supreme Court, the Honorable Justice Max Baer, joined by all other justices, affirmed the Commonwealth Court judgment. App. 2.

However, in its attempt to summarize the dissent in

the Commonwealth Court, the supreme court completely missed the dissent’s main point: that granting

the right of redemption based solely on county population is arbitrary. As such, the Supreme Court failed to

address the following important point made by the dissent:

Since [all] counties . . . can elect to use the additional and alternative procedure of the

MCTLA, along with its right of redemption,

there is no apparent basis relating specifically

to differences in population that would rationalize excluding the right of redemption from

the RETSL. . . . Hence, contrary to the stance

of the [Commonwealth Court] Majority, the

right of redemption seems to be wholly disconnected from the concept of population, some

other characteristic unique to Philadelphia

County or Allegheny County, or the ability or

goal of collecting taxes in general.

Fouse v. Saratoga Partners, L.P. and Huntingdon

County Tax Claim Bureau, 204 A.3d 1028, 1040-1041

(Pa.Cmwlth. 2019) McCullough, J., dissenting (emphasis added). App. 51.

Instead of addressing this important point, the

high court avoided discussion on the irrational aspects

of virtually identical state laws that allow a right of

redemption in some counties but not others, and to

8

consider whether the right “to acquire, possess, and

protect property [i]s a fundamental right” under Article I, Section 1 [of the Pennsylvania Constitution]”.

Fred Lohr and Jolene K. Fouse v. Saratoga Partners,

L.P. and Huntingdon County Tax Claim Bureau, No. 67

MAP 2019 (Pa. October 1, 2020). App. 16.

If the right to “acquire, possess, and protect property” is determined to be as fundamental a right as

“reputation,” then strict scrutiny should be applied and

“the differentiation between taxpayers who have access to a remedy of redemption under the MCTLA and

those who do not under the RETSL must be narrowly

tailored to support a compelling government interest.”

App. 16 (“Fundamental rights and suspect classifications trigger strict scrutiny, whereas important rights

and sensitive classifications require intermediate scrutiny. [Citations omitted]. All other legislative classifications are subject to rational basis review.”)

However, the high court disregarded the text of

Pennsylvania’s Constitution which expressly declares

the right of acquiring, possessing and protecting

property an “inherent and indefeasible right.” App.

16. See id., citing the “right to acquire, possess, and

protect property,” as an “inherent and indefeasible

right” under Article I, Section 1 of the Pennsylvania

Constitution; see also id., at footnote 16 (“Pennsylvania

provides similar protection through Article I, Section

1, addressing, inter alia, equal rights, and Section 26,

providing protection against discrimination: All men

are born equally free and independent, and have certain inherent and indefeasible rights, among which are

9

those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness. Pa. Const.

Art. I, § 1”). App. 22.

Instead, the high court concluded that “the asserted right is not a fundamental constitutional right

but, instead, a statutory remedy, provided as part of a

legislative tax collection process.” App. 24. The court

continued that “the right of redemption within a tax

collection statute is not a vested right but rather

merely a right subject to the control of the Legislature.”

Thus, by completely disregarding the fundamental nature of property rights that are expressly identified in

the Pennsylvania Constitution, the court concluded,

“rational basis review applies to the equal protection

challenge raised herein.” App. 24-25.

In affirming the Commonwealth Court, the supreme court concluded, “the dichotomy between those

landholders subject to the RETSL rather than the

MCTLA does not violate equal protection, under either

the federal or state constitution, because the choice is

rationally related to the legislative determination of

which system will maximize the collection of delinquent taxes for different types of counties. See Pa.

Const. Art. III, § 20 (expressly granting the Legislature

the “power to classify counties . . . according to population”). Id., at App. 28.

However, the Fouses do not challenge the government’s right to tax or take property, just the lack of rationality in arbitrarily treating some homeowners

10

differently than others, as was the case here, where the

government grants some homeowners a right of redemption but not others. Moreover, even if the right to

own and protect property is not a fundamental right

under the state constitution, this gift or right of redemption allowed some individuals but not other similarly situated individuals, must be, but is certainly not

“reasonably related to accomplishing th[e] articulated

state interest or interests.”

---------------------------------♦---------------------------------

REASONS FOR GRANTING THE WRIT

I.

There is No Rational Basis to Support the

Laws that Grant Homeowners in the Most

Populous Counties Three Months to Nine

Months to Redeem their Home after a Municipal Tax Sale but Deny Homeowners in

the Least Populous Counties Any Right of

Redemption Whatsoever

The Equal Protection Clause of the Fourteenth

Amendment forbids the states to “deny to any person

within its jurisdiction the equal protection of the laws.”

U.S. Const. amend. XIV. Where a plaintiff with an

equal protection claim does not allege that distinctions

were made on the basis of a suspect classification such

as race, nationality, gender or religion, the claim arises

under the “class of one” theory. Village of Willowbrook

v. Olech, 528 U.S. 562, 564 (2000). To prevail on such

a claim, the plaintiff must demonstrate: 1) the defendant treated him differently than others similarly situated; 2) the defendant did so intentionally; and 3)

11

there was no rational basis for the difference in treatment. Hill v. Borough of Kutztown, 455 F.3d 225, 239

(3d Cir. 2006). As explained above, the rational basis

test is forgiving, but not without limits. Distinctions

cannot be arbitrary or irrational and pass scrutiny.

City of Cleburne v. Cleburne Living Center, 473 U.S.

432, 446 (1985) (“The State may not rely on a classification whose relationship to an asserted goal is so

attenuated as to render the distinction arbitrary or

irrational.”)

Substantive due process challenges to a legislative

act are reviewed under the rational basis test. Am. Exp.

Travel Related Serv’s., Inc. v. Sidamon-Eristoff, 669

F.3d 359, 366 (3d Cir. 2012). The Supreme Court of the

United States has recognized that the “core of the concept” of substantive due process is the protection

against arbitrary government action. Cty. of Sacramento v. Lewis, 523 U.S. 833, 845 (1998) (citing Hurtado v. California, 110 U.S. 516, 527 (1884)) (“[T]he

touchstone of due process is protection of the individual against arbitrary actions of government”).

Rational basis review is a forgiving standard for

government acts, but it “is not a toothless one[.]”

Mathews v. Lucas, 427 U.S. 495, 510 (1976). As a general matter, the rational basis test requires only that

the governmental action “bear[ ] a rational relationship to some legitimate end.” Romer v. Evans, 517 U.S.

620, 631 (1996). Conversely, actions which are irrational, arbitrary or capricious do not bear a rational relationship to any end. Cty. Concrete Corp. v. Town of

Roxbury, 442 F.3d 159, 169 (3d Cir. 2006) (quoting

12

Pace Resources, Inc., v. Shrewsbury Twp., 808 F.2d

1023, 1035 (3d Cir. 1987)). Accordingly, for the Petitioners to successfully challenge an ordinance, “they must

‘allege facts that would support a finding of arbitrary

or irrational legislative action by the Township.’ ”

In Pennsylvania, two state laws, similar in virtually every aspect save one (i.e., a right of redemption)

govern the sale of residential homes sold by the municipality for non-payment of delinquent property taxes.

App. ___. One law provides a right of redemption while

the other prohibits redemption. See generally Fouse v.

Saratoga Partners, L.P. and Huntingdon County Tax

Claim Bureau, 204 A.3d 1028, 1039 (Pa.Cmwlth. 2019)

McCullough, J., dissenting. App. 48-54.

The law that grants a right of redemption is said

to be limited to counties of the first and second class;

i.e., the most populous counties in Pennsylvania, which

includes Philadelphia County in the east, and Allegheny County in the west, which includes Pittsburgh.

App. 50. All other county classes, third through eighth

class counties, have no right of redemption. Thus, Petitioners who are residents of Huntingdon County, a

sixth-class county in Pennsylvania, had no right to redeem their property after a tax sale. App. 48.

Unequal treatment of state citizens similarly situated is by definition a violation of the “equal protection” clause of the Fourteenth Amendment. Thus, the

tax law here is a blatant violation of the right to equal

protection certainly under a strict scrutiny analysis

but also under the rational basis test. Cf., Fred Lohr

13

and Jolene K. Fouse v. Saratoga Partners, L.P. and

Huntingdon County Tax Claim Bureau, No. 67 MAP

2019 (Pa. October 1, 2020) (“[T]he dichotomy between

those landholders subject to the RETSL [the Tax Sale

Act] rather than the MCTLA [Tax Lien Act] does not

violate equal protection, under either the federal or

state constitution, because the choice is rationally related to the legislative determination of which system

will maximize the collection of delinquent taxes for different types of counties.]”). App. 28.

Despite the Pennsylvania Supreme Court’s decision in this case, in Pennsylvania, a Commonwealth

whose Constitution was framed and written by some

of the same men who framed and wrote the federal

constitution, the right “of acquiring, possessing and

protecting property” is an “inherent and indefeasible

right”. See Pa. Const., Article I, Section 1. Property

rights defined as “inherent and indefeasible” constitutional rights had a self-evident meaning when used by

the 18th century authors of the Pennsylvania and federal constitutions. To the 21st century stewards of the

state constitution “inherent and indefeasible” constitutional rights suffer declining importance and meaning.

Hence, rights described as “inherent and indefeasible”

give no more than a momentary pause in a 21st century supreme court. See id. Legislative greed for taxes

renders the carefully chosen words of our earliest and

actual patriots infirmed. Now, “inherent and indefeasible” constitutional rights are trumped by “the classification adopted in the legislation when reasonably

14

related to accomplishing [an] articulated state interest.” See id.

The articulated state interest and rationalization

provided by the Pennsylvania Supreme Court fails to

satisfy any practical consideration of the rational basis

standard. See Shapiro v. Thompson, 394 U.S. 618, 639,

89 S.Ct. 1322, 22 L.Ed.2d 600 (1969) (rejecting proffered justification for a statute where the justification

was “completely refuted by the legislative history”);

and see United States v. Carolene Products Co., 304

U.S. 144, 152, 58 S.Ct. 778, 82 L.Ed. 1234 (1938) (stating that “the existence of facts supporting the legislative judgment is to be presumed . . . unless in the light

of the facts made known or generally assumed it is of

such a character as to preclude the assumption”); see

also, Fouse, 204 A.3d 1028, 1040-1041 (Pa.Cmwlth.

2019) McCullough, J., dissenting:

Since [all] counties . . . can elect to use the additional and alternative procedure of the

MCTLA, along with its right of redemption,

there is no apparent basis relating specifically to differences in population that

would rationalize excluding the right of

redemption from the RETSL. . . . Hence,

contrary to the stance of the [Commonwealth

Court] Majority, the right of redemption

seems to be wholly disconnected from the

concept of population, some other characteristic unique to Philadelphia County

or Allegheny County, or the ability or goal

of collecting taxes in general.

15

Fouse, 204 A.3d 1028, 1040-1041, McCullough, J., dissenting (emphasis added).

Try as it might, the state supreme court could not

rationalize discrimination against homeowners by

denying them a right of redemption based on their residence in lower class counties, while allowing the same

right to those in the higher class counties that include

Pittsburgh and Philadelphia. Indeed, the high court’s

reasoning (quoted below) defies logic, while bending

over backwards to find against the Fouses. Thus, if the

high court’s explanation somehow satisfies the “rational basis” test, then any explanation is rational and

there is no practical standard available to protect

rights which our framers originally declared “inherent

and indefeasible”:

[T]he legislative branch has broad discretion

in regard to tax collection, based in part on the

“importance of the tax collection process to the

perpetuation and continuing vitality of government.” [Citations omitted.] Indeed, we

have opined that statutes “authorizing the assessment of municipal taxes, the creation of

liens therefor, the sale of lands to satisfy the

liens, and the time of redemption given to

owners, constitute together [a] system of remedies for enforcing the taxing power – [of ]

which there is no clearer power in the constitution.” . . . Appeal of Gault, 33 Pa. 94, 100 (Pa.

1859). This Court has additionally opined

that the right of redemption within a tax collection statute is not a vested right but rather

merely a “right subject to the control of the

16

Legislature.” . . . Under rational basis review,

the relationship between the classification

and the legitimate state interest need not be

set forth expressly by the Legislature. [Citations omitted.] Moreover, courts have recognized that legislative classifications are

enacted to address complex issues that may

not have clear cut solutions. Accordingly,

courts have opined that “[a] classification does

not fail rational-basis review because it is not

made with mathematical nicety or because in

practice it results in some inequality.” [Citations omitted.] . . . As noted above, we recognize that tax collection statutes serve the

legitimate and, indeed, critical purpose of

funding government by providing “prompt

and certain availability” of assessed taxes. Cedarbrook Realty, Inc., 399 A.2d at 377 (quoting

Bull v. United States, 295 U.S. 247, 259-60

(1935) (observing that “taxes are the life-blood

of government, and their prompt and certain

availability an imperious need”)[.] In regard

to the RETSL specifically, this Court has

opined that the purpose of the RETSL is “to

expedite the collection of delinquent real estate taxes, to retain the productivity of the

real estate, and to maintain economic value.”

[Citations omitted.] . . . We next consider

whether the legislative decision to include a

redemption remedy in the MCTLA but exclude it from the RETSL is rationally related

to the legitimate government purpose of expediting the collection of delinquent real estate

taxes. We agree with the courts below . . .

that the lack of a redemption provision in

17

the RETSL promotes the legislative interest in facilitating the collection of delinquent taxes by ensuring certainty and

finality for tax sales, which, in turn,

likely encourages higher bids based on

the greater security provided to the purchaser. We additionally reject the implicit suggestion that the MCTLA

provides greater protection to delinquent

taxpayers than the RETSL. Rather than

looking myopically at the inclusion or exclusion of a redemption remedy, a broader consideration shows that both statutes offer

protections to the delinquent taxpayer, with

the RETSL utilizing greater pre-sale protections, whereas the MCTLA focuses on postsale remedies. Most significantly, while the

MCTLA allows delinquent taxpayers nine

months to pay their taxes to regain ownership

of their properties, the RETSL grants delinquent taxpayers twelve months to pay their

taxes to prevent the loss of ownership, so long

as they pay twenty-five percent of the taxes

prior to the date of sale. Compare 53 P.S.

§ 7293 (MCTLA redemption provision) with

72 P.S. § 5860.603 (RETSL removal from sale

provision). These provisions contain trade-offs

for all stakeholders. For the delinquent taxpayer, one system provides twelve rather than

nine months from the scheduled sale to satisfy

the delinquent taxes, but requires a quarter of

the total to be paid prior to the scheduled sale.

The purchaser takes on greater risk in buying

a property under the MCTLA, given the potential post-sale redemption, but likely pays a

18

lower price to compensate for the higher risk.

The taxing district under the RETSL must

wait a year to determine if the taxpayer will

meet its obligation to repay the full amount of

delinquent taxes, but is provided twenty-five

percent in advance and likely receives higher

bids for those properties which go to sale, due

to the lower risk given the prohibition on redemption in the RETSL. Moreover, various

reasons have been proposed for why one system is more advantageous for rural or urban

counties in maximizing the collection of delinquent taxes[.] . . . The rationality of these explanations are not undermined . . . by the

statutory provision allowing tax bureaus in

the less populated counties to opt into the

MCTLA. That an individual county deems one

of the systems more advantageous to that

county’s specific situation does not undermine

the legislative determination that, generally,

the RETSL system is better suited for more

rural counties.

See Fred Lohr and Jolene K. Fouse v. Saratoga Partners, L.P. and Huntingdon County Tax Claim Bureau,

No. 67 MAP 2019 (Pa. Oct. 1, 2020) (emphasis added).

App. 27-28.

As residents of Huntingdon County and holders of

“inherent and indefeasible [Constitutional] rights,” Petitioners are nevertheless victims of irrational and unequal treatment which prohibits them the same right

to redemption as residents of Philadelphia and Pittsburgh. As the dissent in the Commonwealth Court

aptly pointed out:

19

[T]here are no significant substantive or procedural differences between the RETSL and

the MCTLA, except for the automatic right to

redemption in the MCTLA. . . . Additionally,

“[w]hether the judicial sale is effected under

the MCTLA or the RETSL the intent of the

legislature is the same: to return real property

to productive use under new ownership.” [citation omitted]. Against this background, the

Majority discerns a rational basis for the General Assembly’s differential classification of

the RETSL and MCTLA by focusing on the

fact that Pennsylvania’s first and second class

counties, Philadelphia County and Allegheny

County, have greater populations than the

other counties. From this, the Majority posits

that Philadelphia County and Allegheny

County “have larger pools of prospective buyers at tax sales,” which “make it more likely

that a property will be sold at a tax sale.” Maj.

op. at 1038. Therefore, according to the Majority, “the need for owner protection is greater”

and this “need is met” with the right of redemption found in the MCTLA. Maj. op. at

1038. The Majority also asserts that, by virtue

of having comparatively higher population

figures, Philadelphia County and Allegheny

County contain “a larger taxable base from

which to derive revenue” and, as such, “the

General Assembly could have reasoned that

these counties can afford a less efficient process for collecting delinquent taxes by providing a post-tax-sale right of redemption.” Id.

However, the justifications conceived by

the Majority are refuted and rendered

20

implausible in light of section 39.5 of the

MCTLA, which provides that “[t]he tax

claim bureaus of the several counties may

adopt and use the procedures set forth in

this act in addition to the procedures set

forth in the [RETSL].” 53 P.S. § 7193.5.

Since the counties that are covered under

the RETSL, including the least populous

eighth class county, can elect to use the

additional and alternative procedure of

the MCTLA, along with its right of redemption, there is no apparent basis relating specifically to differences in

population that would rationalize excluding the right of redemption from the

RETSL. . . . Hence, contrary to the stance

of the Majority, the right of redemption

seems to be wholly disconnected from the

concept of population, some other characteristic unique to Philadelphia County

or Allegheny County, or the ability or goal

of collecting taxes in general. [Footnote 6]

[This point is buttressed by the fact that, under the Treasurer’s Act, residents in the City

of Pittsburgh, the largest municipality in Allegheny County, can only redeem property

within 90 days or three months after the date

of the treasurer’s sale, 53 P.S. § 27304, while

residents of the smaller townships and boroughs of Allegheny County have a guaranteed

right to redeem property within nine months

of acknowledgement of the sheriff ’s deed . . .

under the MCTLA, 53 P.S. § 7293(a). [Citations omitted.] . . . If there were a positive

correlation between population size and

21

the right of redemption, then, ostensibly,

the residents of Pittsburgh would have at

least the same amount of time to redeem

property as the surrounding townships

and boroughs that are located in Allegheny County.]

Fouse, 204 A.3d at 1040-1041 (Pa.Cmwlth. 2019)

McCullough, J., dissenting (emphasis added). App. 49-52.

The dissent in the Commonwealth Court recognized that the rationalization makes no sense because

the correlation makes no sense and is illogical reasoning. App. 52. See id., at footnote 6 (“If there were a positive correlation between population size and the right

of redemption, then, ostensibly, the residents of Pittsburgh would have at least the same amount of time to

redeem property as the surrounding townships and

boroughs that are located in Allegheny County”); see

also, United States v. Carolene Products Co., 304 U.S.

144, 152 (1938) (stating that “the existence of facts

supporting the legislative judgment is to be presumed

. . . unless in the light of the facts made known or generally assumed it is of such a character as to preclude

the assumption”); Shapiro v. Thompson, 394 U.S. 618,

639 (rejecting proffered justification for a statute

where the justification was “completely refuted by the

legislative history”).

As the dissent in the Commonwealth Court also

explains, “the right of redemption seems to be wholly

disconnected from the concept of population, some

other characteristic unique to Philadelphia County or

Allegheny County, or the ability or goal of collecting

22

taxes in general.” Id. (“I am simply unable to decipher

how the exclusion of a right of redemption from the

RETSL bears a reasonable relationship to a legitimate

state purpose, or how the denial of this right promotes

the purpose of classification based upon county size.”)

App. 53.

Consequently, the explanation attempted by the

state supreme court fails the rational basis test and

as the dissent further recognizes: “All counties in the

Commonwealth [should] utilize the MCTLA (which

they are already authorized to do) as the sole procedure through which to conduct tax sales, thereby ensuring that all the homeowners in this Commonwealth

are treated alike and are vested with the right to redeem their property.” App. 53-54. Therefore, the basis

upon which Fred and Jolene Fouse of Huntingdon

County Pennsylvania were denied the due process and

equal protection guarantees found in the Fourteenth

Amendment to the United States Constitution fails the

rational basis test.

---------------------------------♦---------------------------------

CONCLUSION

The Supreme Court should grant this petition for

writ of certiorari in order to declare an individual’s

right to redeem property in one county equal to an individual’s right to redeem property in another county

and that favoring one over the other denies an individual the equal protection of the law under the Fourteenth Amendment to the United States Constitution.

23

Petition for a writ of certiorari should therefore be

granted.

Respectfully submitted,

GENNADY L. LEBEDEV

SAM HELMI

LEBEDEV, MICHAEL & HELMI, APLC

10999 Riverside Dr., Suite 201

Studio City, CA 91602

(818) 757-7677

Fx (818) 757-7047

gennady@lmhlaywers.com

sam@lmhlawyers.com

www.lmhlawyers.com

Counsel for Petitioners

RICHARD J. GERACE

GERACE LAW OFFICE

1515 Market St., Suite 1200

Philadelphia, PA 19102

(215) 854-6345

Fx (484) 472-8749

rgerace14@comcast.net

www.geracelawfirm.com

February 24, 2021

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

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