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

App. 1

FRED LOHR AND JOLENE K. FOUSE, Appellants

v.

SARATOGA PARTNERS, L.P. AND HUNTINGDON

COUNTY TAX CLAIM BUREAU, Appellees

No. 67 MAP 2019

Supreme Court of Pennsylvania

October 1, 2020

ARGUED: May 21, 2020

Appeal from the Order of the Commonwealth

Court dated March 7, 2019 at No. 128 CD 2018 Affirming the Order of the Huntingdon County Court of Common Pleas, Civil Division, dated October 23, 2017 at

No. CP-31-CV-1701-2016.

SAYLOR, C.J., BAER, TODD,

DOUGHERTY, WECHT, MUNDY, JJ.

DONOHUE,

OPINION

BAER JUSTICE.

We granted discretionary review to consider

whether the availability of a taxpayer remedy under

the Municipal Claims and Tax Liens Act (“MCTLA”),

53 P.S. §§ 7101-7505, but not the Real Estate Tax

Sale Law (“RETSL”), 72 P.S. §§ 5860.101-5860.803,

violates the equal protection provisions of the United

States and Pennsylvania Constitutions. Relevantly,

and absent exceptions described infra, the MCTLA

permits delinquent taxpayers in the first and second

class counties of Philadelphia and Allegheny to redeem

property sold at an upset tax sale by paying the

App. 2

delinquent taxes and other costs within nine months

of the sale, while the RETSL, which governs upset tax

sales in second class A through eighth class counties,

explicitly excludes post-sale redemption.[1] After review, we conclude that the General Assembly’s decision

to omit the right of post-sale redemption from the

RETSL is constitutional because it is rationally related

to a legitimate state interest as discussed below. Accordingly, we affirm the order of the Commonwealth

Court upholding the denial of the delinquent taxpayers’ petition to redeem in this case involving a tax sale

governed by the RETSL.

Appellants, Fred L. and Jolene K. Fouse (“the

Fouses”) owned two parcels of land in Lincoln Township,

Huntingdon County, identified by Tax Identification

Numbers 24-08-02 and 24-08-01.1 (“the Property”),

which they utilized as their primary residence from

the time they acquired the two parcels in 1976 and

1987, respectively. Eventually, the Fouses fell behind

in the payment of their taxes on the Property, owing a

total of $16, 747.50 for 2014 and 2015, according to the

Huntingdon County Tax Claim Bureau (“Tax Claim

Bureau”).[2] As mandated by the RETSL, the Tax Claim

Bureau scheduled an upset tax sale for September

1

An upset tax sale, generally, is the sale of property to recoup unpaid taxes at which all bids must equal or exceed a predetermined price sufficient to pay specified taxes, claims, and costs.

See, e.g., 72 P.S. § 5860.605 (RETSL provision entitled “Upset sale

price”).

2

The properties had a total assessed value of $152, 800, according to the Tax Claims Bureau. Brief in Opposition to Petition

to Redeem at 2 (unnumbered).

App. 3

2016 and provided the requisite notice and publication.

At the tax sale, appellees, Saratoga Partners, L.P. (“Saratoga”), submitted the highest bid of $27, 795.45.

Three months later, in December 2016, the Fouses

filed a “petition to redeem property sold at tax sale”

(“Petition to Redeem”), even though Huntington County,

as a sixth class county, is governed by the RETSL,

which, as set forth infra, prohibits post-sale redemption.[3] Instead, the Fouses asserted, inter alia, a right

to redeem under Section 7293 of the MCTLA by paying

the amount paid by Saratoga at the tax sale.[4] The

3

Before this Court, the Fouses only assert their right to redeem the Property. Accordingly, we will not discuss the other issues raised in the Petition to Redeem.

4

Section 7293 of the MCTLA provides in relevant part:

§7293. Redemption

(a) The owner of any property sold under a tax or municipal claim, or his assignees, or any party whose lien

or estate has been discharged thereby, may, except as

provided in subsection (c) of this section, redeem the

same at any time within nine months from the date of

the acknowledgment of the sheriff ’s deed therefor,

upon payment of the amount bid at such sale; the cost

of drawing, acknowledging, and recording the sheriffs

deed; the amount of all taxes and municipal claims,

whether not entered as liens, if actually paid; the principal and interest of estates and encumbrances, not discharged by the sale and actually paid; the insurance

upon the property, and other charges and necessary expenses of the property, actually paid, less rents or other

income therefrom, and a sum equal to interest at the

rate of ten per centum per annum thereon, from the

time of each of such payments . . . [Addressing rights of

lienholders to redeem.]

App. 4

Fouses asserted that they deposited funds in escrow to

cover the relevant taxes and costs. The trial court issued a rule to show cause why the relief should not be

granted, ordered briefing, and scheduled a hearing on

the matter.

In their brief in support of the Petition to Redeem,

the Fouses acknowledged that the MCTLA applies to

first and second class counties, which include Philadelphia and Allegheny, while the RETSL generally governs all other counties, including Huntingdon.[5] The

Fouses emphasized that the MCTLA provides delinquent property owners a post-sale right of redemption

if delinquent taxes and costs are paid within nine

(b) Any person entitled to redeem may present his petition to the proper court, setting forth the facts, and

his readiness to pay the redemption money; whereupon

the court shall grant a rule to show cause why the purchaser should not reconvey to him the premises sold;

and if, upon hearing, the court shall be satisfied of the

facts, it shall make the rule absolute, and upon payment being made or tendered, shall enforce it by attachment.

(c) [Addressing vacant properties] 53 P.S. § 7293.

5

Within Allegheny County, the City of Pittsburgh is separately governed by the Second Class City Treasurer’s Sale and

Collection Act, 53 P.S. §§ 27101-27605. It limits taxpayer’s ability

to redeem to “[w]ithin 90 days after the date of the treasurer’s

sale.” 53 P.S. § 27304.

Moreover, the MCTLA allows tax claims bureaus of second

class A to eighth class counties to adopt the procedures and

remedies of the MCTLA, including the redemption provision,

in addition to those provided in the RETSL, 53 P.S. § 7193.5.

Huntingdon County apparently has not adopted these procedures.

App. 5

months of the upset sale, while the RETSL explicitly

instructs that “[t]here shall be no redemption of

any property after the actual sale thereof.” 72 P.S.

§ 5860.501(c).

The Fouses argued that the absence of a right of

redemption provision in the RETSL, in contrast to

the existence of the right in the MCTLA, results in

citizens of second class A through eighth class counties being treated less favorably than citizens of first

and second class counties, in violation of the equal protection provisions of the United States and Pennsylvania Constitutions.[6] The Fouses additionally asserted

that property rights are fundamental rights subject to

strict scrutiny, which requires any statutory classification to be narrowly tailored to support a compelling

government interest.

In addressing the state interest prong, the Fouses

recognized that this Court has held that the purpose

of tax sale laws is “not to strip the taxpayer of his

property but to ensure the collection of taxes.” Brief in

Support of Petition to Redeem at 9 (unnumbered)

(quoting Tracy v. County of Chester, Tax Claim Bureau,

489 A.2d 1334, 1339 (Pa. 1985)). The Fouses argued

that the state interest in collecting taxes is served by

the redemption provision because it allows for property owners to pay the taxes and all costs incurred.

They maintained that the absence of the redemption

6

The Equal Protection Clause of the United States Constitution’s Fourteenth Amendment and the relevant provisions of

the Pennsylvania Constitution are set forth infra at 17-18 n.16.

App. 6

provision does not advance the purpose of tax collection but instead divests the property owner of their

rights, such that it is not narrowly tailored to tax collection, as required for strict scrutiny.[7]

The Tax Claim Bureau responded, emphasizing

that both the MCTLA and the RETSL contain provisions that allow delinquent taxpayers to remedy an upset tax sale. The MCTLA, as stated, allows property

owners to redeem the property within nine months of

a tax sale, upon payment of the taxes and costs. The

RETSL, however, provides a pre-sale remedy by which

property owners can stay the sale of their property by

paying twenty-five percent of the delinquent taxes

prior to the date set for the upset sale and agreeing to

an installment plan to pay the remaining taxes within

the next twelve months. Brief in Opposition to Petition

to Redeem at 4 (unnumbered) (referencing 72 P.S.

§ 5860.603 of the RETSL).[8] Thus, they emphasized

7

The Fouses also originally asserted their claims under the

Uniformity Clause of Article VIII, Section 1, but it appears that

they abandoned that claim before this Court, presumably because

Article III, Section 20 of the Pennsylvania Constitution expressly

allows the legislature to treat counties differently based on population, see infra at 7 n.9.

They additionally raised a substantive due process claim in

their Petition to Redeem. While they abandoned that argument

by failing to raise it in their Pa.R.A.P. 1925(a) Statement of Matters

Complained of on Appeal, many of the arguments in support of that

proposition overlap with their ongoing equal protection claims.

Accordingly, they have been included herein where relevant.

8

Section 5860.603 of the RETSL provides as follows:

§ 5860.603. Removal from sale; agreements to stay sale

Any owner or lien creditor of the owner may, at the option of the bureau, prior to the actual sale, (1) cause the

App. 7

property to be removed from the sale by payment in full

of taxes which have become absolute and of all charges

and interest due on these taxes to the time of payment,

or (2) 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. But in case of default in such

agreement by the owner or lien creditor, the bureau,

after written notice of such default given by United

States mail, postage prepaid, to the owner or lien creditor at the address stated in the agreement, shall apply

all payments made against the oldest delinquent taxes

and costs, then against the more recent. If sufficient

payment has been made to discharge all the taxes and

claims which would have caused the property to be put

up for sale, the property may not be sold. If sufficient

payment has not been received to discharge these taxes

and claims, the bureau shall proceed with the sale of

such property in the manner herein provided either at

the next scheduled upset sale or at a special upset sale,

either of which is to be held at least ninety (90) days

after such default. 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.

72 P.S. § 5860.603.

App. 8

that both acts allow for taxpayers to regain their property by paying the delinquent taxes within a year of

the scheduled tax sale.

Saratoga additionally filed a brief in the trial court

in support of denying the Fouses’ Petition to Redeem.

It rejected the Fouses claim to a right of redemption,

as it viewed redemption to be merely “an equity” provided by the statute. Saratoga Brief in Opposition to

Petition to Redeem at 6-7 n.3. Thus, it argued that, in

the absence of the derogation of a fundamental right,

rational basis, rather than strict scrutiny, should be

applied to the Fouses’ equal protection challenge.

Saratoga emphasized that the Pennsylvania Constitution explicitly allows for classifications based on

county size in Article III, Section 20.[9] Saratoga highlighted that this Court has found variations in taxation between territorial divisions, such as between

Pittsburgh and Philadelphia, to be constitutional under the Uniformity Clause, so long as there is uniformity within the territorial division, citing Moore v.

School Dist. of Pittsburgh, 13 A.2d 29, 32 (Pa. 1940).

9

Section 20 provides in full as follows:

The Legislature shall have power to classify counties,

cities, boroughs, school districts, and townships according to population, and all laws passed relating to each

class, and all laws passed relating to, and regulating

procedure and proceedings in court with reference to,

any class, shall be deemed general legislation within

the meaning of this Constitution.

Pa. Const. art. III, § 20.

App. 9

In October 2017, the trial court denied the Petition

to Redeem. After the Fouses filed a notice of appeal, the

court authored an opinion in support of its order.[10] The

trial court recognized that the distinction between the

MCTLA and the RETSL resulted in property owners

in some areas, including Philadelphia, having a right

to redeem their properties within nine months of an

upset tax sale, while those in less populated counties,

such as the Fouses in Huntingdon County, do not have

that opportunity. The court, however, concluded that

the distinction withstood constitutional scrutiny.

In so doing, the court applied the rational basis

test, which requires that the statute promote a legitimate state interest and that the classification be “reasonably related to accomplishing that articulated state

interest.” Tr. Ct. Op. at 5 (citing Curtis v. Kline, 666

A.2d 265, 269 (Pa. 1995)). The trial court looked first to

the state’s interest in enacting the RETSL without a

redemption provision. It recognized the “dominant purposes of the [RETSL] were to provide speedier and

more efficient procedures for enforcing tax liens and to

improve the quality of titles obtained at a tax sale,”

which, in turn, promoted the state’s interest in tax

10

The Fouses originally filed their appeal in Superior Court,

and the case was later transferred to the Commonwealth Court

in January 2018.

In the Fouses’ Pa.R.A.P. 1925(b) Statement of Matters Complained of on Appeal, they asserted the following single issue:

“The failure of the Real Estate Tax Law of 1947 to provide taxpayers with a redemption period violates both the Equal Protection Clause of the United State Constitution and Article III of the

Constitution of the Commonwealth of Pennsylvania.”

App. 10

collection. Tr. Ct. Op. at 5 (quoting Povlow v. Brown,

315 A.2d 375, 377 (Pa. Cmwlth. 1974)).

Agreeing with the court in Povlow, the trial court

observed that “redemption would have the effect of

making titles less attractive” and likely result in lower

bids, which might be insufficient to satisfy the taxes

due. Id. at 6 (quoting Povlow, 315 A.2d at 377 n.4) (alterations in original removed). The court additionally

opined that the classification of taxpayers subject to

the MCTLA rather than the RETSL was “addressed

by Article III, Section 20, of the Pennsylvania Constitution[,] which specifically permits classification

by population.” Id. Given the presumption in favor of

constitutionality, the trial court concluded that the

lack of a redemption provision in the RETSL did not

violate taxpayers’ right to equal protection under the

federal or state constitutions.

On appeal to the Commonwealth Court, the

Fouses asserted that the trial court erred in applying

rational basis scrutiny to their constitutional challenge. In a published decision of a divided three-judge

panel, the Commonwealth Court affirmed the trial

court’s order denying the Fouses’ Petition to Redeem.

Fouse v. Saratoga Partners, L.P., 204 A.3d 1028 (Pa.

Cmwlth. 2019). The court viewed the Fouses’ claim as

focused on their equal protection rights secured by the

Pennsylvania Constitution, n specifically Article I,

Sections 1 and 26,[11] rather than the federal Equal

11

Section 1 and Section 26 are set forth infra 17-18 n.16.

App. 11

Protection Clause. It opined, however, that the provisions were coextensive.[12] Id. at 1033 n.9.

The Commonwealth Court first considered the applicable level of constitutional scrutiny. The court

viewed “the Fouses’ asserted right to post-tax-sale redemption” as subsumed within the broader “right to

‘freely hold and dispose of ’ one’s property,” which the

court previously deemed subject to rational basis review because it did not involve a fundamental right.

Fouse, 204 A.3d at 1036 (quoting McSwain v. Commonwealth, 520 A.2d 527, 530 (Pa Cmwlth. 1987)). The

court also reasoned that rational basis review was appropriate because the applicability of the MCTLA rather than the RETSL derived from the population size

of the county. It emphasized that this criteria “implicate[d] neither a suspect class nor a sensitive classification,” which would have triggered a higher level of

scrutiny. Id. at 1036 n.11 (citing Small v. Horn, 722

A.2d 664, 672 n.14 & 15 (Pa. 1998)).

As did the trial court, the Commonwealth Court

looked to this Court’s decision in Curtis for application

of the rational basis test to an equal protection challenge. It recognized that the rational basis test generally requires courts to “determine whether the

challenged statute seeks to promote any legitimate

state interest or public value” and then to “determine

whether the classification adopted in the legislation is

12

The Commonwealth Court indicated that the Tax Claim

Bureau failed to file a brief and was precluded from participating

in the appeal. Id. at 1033 n.8.

App. 12

reasonably related to accomplishing that articulated

state interest or interests.” Id. at 1036 (quoting Curtis,

666 A.2d at 269). It recognized that “[t]he prohibition

against treating people differently under the law does

not preclude the Commonwealth from resorting to legislative classifications, provided that those classifications are reasonable rather than arbitrary” and “rest

upon some ground of difference which justifies the classification and has a fair and substantial relationship

to the object of the legislation.” Id. at 1037 (quoting

Curtis, 666 A.2d at 267-68 (citations omitted)). The

court further observed that “[a] classification, though

discriminatory, is not arbitrary or in violation of the

equal protection clause if any state of facts reasonably

can be conceived to sustain that classification.” Id.

(quoting Curtis, 666 A.2d at 268 (citations omitted)). It

opined that the rationale does not need to be set forth

in the legislation or asserted by the Commonwealth,

but instead recognized that courts may hypothesize

justifications supporting the classification. Id. at 10371038 (citing Pa. Liquor Control Bd., 485 A.2d 732, 735

(Pa. 1984); Curtis, 666 A.2d at 268)).

Applying these principles, the Commonwealth

Court first looked to whether the legislature had a legitimate state interest in excluding redemption from

the RETSL. Echoing the trial court’s reliance on Povlow, the court concluded that the RETSL promoted the

legitimate government interest in “speedier and more

efficient procedures for enforcing tax liens and [improving] the quality of the title” sold at tax sales. Id.

App. 13

(quoting Pacella v. Washington Cty. Tax Claim Bureau,

10 A.3d 422, 428 (Pa. Cmwlth. 2010)).

The Commonwealth Court next considered

whether the legislative classification between more

populated counties, with the right of redemption under

the MCTLA, and less populated counties, without the

remedy under the RETSL, was rationally related to the

legitimate legislative purpose of a more efficient tax

collection process. The court found the test satisfied

based upon the following analysis, which is central to

the instant appeal:

[W]e posit that Pennsylvania’s first and second class counties have larger pools of prospective buyers at tax sales. These larger

pools of prospective buyers make it more

likely that a property will be sold at a tax sale.

Under these circumstances, the need for

owner protection is greater, and that need is

met by the equity of redemption in the more

populous counties. Further, as these counties

have a higher population and, therefore, a

larger taxable base from which to derive revenue, 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. at 1038. Given that the court could “conceive of

plausible reasons for the statute, and the legislative

classification does not rest on grounds wholly irrelevant to the achievement of the state’s purpose,” it concluded “that RETSL’s lack of a post-tax-sale right of

App. 14

redemption provision satisfies rational basis review.”

Id. Accordingly, the court affirmed the trial court’s order denying the Fouses’ Petition to Redeem.

Judge McCullough dissented. Emphasizing the

similarities between the two statutes, the dissent

opined 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.” Id. at 1040 (McCullough, J., dissenting). With the asserted similarity as backdrop, the dissent rejected the rationale conceived by the majority to

support the legislative classification, which was based

on the distinction between large and small counties.

The dissent opined that it found this rationale unpersuasive because Section 7193.5 of the MCTLA provided tax claims bureaus in the counties with smaller

populations with the ability to adopt aspects of the

MCTLA. Thus, the dissent argued, the MCTLA allowed citizens of some less populated counties to utilize the redemption provisions, despite the size of their

populations. Id. (citing 53 P.S. § 7193.5. (“The 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].”)). The dissent

opined that there was “no apparent basis relating specifically to differences in population that would rationalize excluding the right of redemption from the

RETSL.” Id. at 1040-41.

The dissent “view[ed] the right of redemption as a

personal, individual right that provides a homeowner

with an extra or final chance to reclaim property

App. 15

following” a tax sale. Id. at 1041. It continued, opining

that regardless of the population of the county in which

“a homeowner resides, that homeowner shares the

same interest in redemption as any other homeowner

located anywhere else in the Commonwealth.” Id. Accordingly, the dissent concluded that classification

violated the equal protection provisions of the federal

and Pennsylvania Constitutions. The dissent would instead “enjoin enforcement of the RETSL and enter an

order requiring all the counties in the Commonwealth

to utilize the MCTLA (which they are already authorized to do) as the sole procedure through which to conduct tax sales,” thus ensuring that all taxpayers have

the equal option to redeem. Id. at 1042 (footnote omitted).

The Fouses sought allowance of appeal, which

this Court granted, to address the following issue:

“Whether the lack of a right to redemption under the

Real Estate Tax Sale Law (RETSL) 72 P.S. § 5860.101

et seq., violates the Equal Protection Clause of the

United States Constitution and Article III of the Pennsylvania Constitution.” [Fouse] v. Saratoga Partners,

L.P., 217 A.3d 794 (Pa. 2019). In this Court, the Fouses

reassert the arguments they raised in the lower tribunals.[13]

13

Although the Fouses’ question asserts a right of equal protection under Article III of the Pennsylvania Constitution, their

argument relies primarily upon the equal protection provision of

Article I, Section 1 of the Commonwealth’s charter, as it has

throughout the course of this litigation.

App. 16

They frame the right involved as the “right to acquire, possess, and protect property,” which they emphasize is an “inherent and indefeasible right” under

Article I, Section 1 of the Pennsylvania Constitution.

Fouses’ Brief at 9-10 (quoting Pa. Const. Art. I, § 1).

They recognize that, while this Court has not specifically identified the right to acquire, possess, and protect property as a fundamental right, we have deemed

other rights in Article 1, Section 1 to be fundamental,

including the right to reputation. Id. at 10.

Arguing that strict scrutiny should be applied to

this fundamental right, they contend that 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. They assert that

“[t]he classification of citizens based upon the population of the municipality in which they live does not

serve a compelling government interest.” Id. at 7.

Assuming arguendo that this Court deems the

right subject to rational basis review, the Fouses alternatively argue that the classification fails to meet that

lower standard as well. They assert that the redemption provision protects the government interest in the

collection of taxes. The Fouses contend that “neither

the government nor the land speculator are deprived

of anything” through the use of a redemption remedy

because the “government’s tax interest is paid and the

speculator’s bid is returned, along with any actual

costs.” Id. at 14. They acknowledge, however, that the

App. 17

speculator “must wait to see if his speculation will bear

fruit” during the redemption period. Id.

In contrast, they argue that the lack of a redemption remedy merely serves “to divest owners of their

property, even when the owner comes forth with all

monies owed, in hand.” Id. at 12. They emphasize that

this Court in Tracey, 489 A.2d at 1339, held that the

purpose of tax sale laws is “not to strip the taxpayer of

his property but to ensure the collection of taxes.” Id.

at 14.

The Fouses reject the trial court and the Commonwealth Court’s justifications for the classifications of

citizens subject to the MCTLA and the RETSL based

upon the population size of their counties. In this regard, the Fouses relied upon the reasoning of the dissent in the Commonwealth Court, which emphasized

that the tax bureaus in the less populous counties have

the ability to opt into the procedures of the MCTLA, 53

P.S. § 7193.5, and, accordingly, “there is no apparent

basis relating specifically to differences in population

that would rationalize excluding the right of redemption from the RETSL.” Fouses’ Brief at 14 (quoting

Fouse, 204 A.3d at 1040-41 (McCullough, J., dissenting)).[14]

Saratoga responds by arguing that the relevant

right is not the right to acquire, possess, or protect

property but rather a claimed right to redeem property,

which it contends is not a right encompassed by Article

14

The Community Justice Project submits an amicus curiae

brief in support of the Fouses.

App. 18

1, Section 1. Saratoga avers that this Court has previously addressed the lack of a right to redeem under the

RETSL in Bernitsky v. Schuylkill County, 112 A.2d

120, 130 (Pa. 1955), discussed infra, which addressed

the elimination of a redemption provision when the

RETSL was enacted in 1947. The Court in Bernitsky

opined that the redemption right included in a prior

statute could be eliminated by the Legislature through

the RETSL as it was not a vested right.

Saratoga argues that the Legislature’s decision to

include post-sale redemption in the MCTLA but not

the RETSL should be subject to the rational basis test,

requiring the distinction to be rationally related to a

legitimate state interest. It emphasizes that this Court

has long found the collection of taxes to be a legitimate

state interest given that “taxes are the life-blood of

government, and their prompt and certain availability

an imperious need.” Saratoga’s Brief at 14-15 (quoting

Cedarbrook Realty Inc. v. Nahill, 399 A.2d 374, 378 (Pa.

1979)).

Saratoga next considers whether the distinction

between the MCTLA and RETSL regarding the right

of redemption is rationally related to the state’s

interest in collecting delinquent taxes. In contrast to

the Commonwealth Court dissent’s conclusion that the

redemption provision was the primary difference between the MCTLA and the RETSL, Saratoga highlights a number of distinctions between the statutes,

which provide context for the inclusion or exclusion of

the redemption provision. Specifically, it highlights

that the RETSL provides greater pre-sale protections

App. 19

through stricter and more extensive notice requirements, including specific procedures to locate the property owner and others, not applicable to the MCTLA.[15]

Saratoga’s Brief at 17 (comparing Pa.R.C.P. 3129.2(b)

(governing the posting of notice via handbills applicable to the MCTLA) with 72 P.S. § 5860.102 (defining

“posting” by setting forth detailed criteria to provide

conspicuous notice to both the owner and the public

for sales pursuant to the RETSL)); id. at 18 (comparing Pa.R.C.P. 3129.1 and 3129.2(c) (addressing service of written notice applicable to the MCTLA) with

the enhanced provisions of the RETSL, under 72 P.S.

§ 5860.607a(a) (requiring “additional notification efforts” to locate and provide notice to various persons or

entities “likely to be significantly affected” by the tax

sale, including documentation of such efforts)). Saratoga also highlights more exacting requirements for

service on the owner under the RETSL. Id. at 19-20

(contrasting service of notice upon the owner pursuant

to Pa.R.C.P. 402(a) and 403 (applicable to the MCTLA

as incorporated by Pa.R.C.P. 3129.2(c)(1)(i)) with 72

15

Saratoga observes that the Pennsylvania Rules of Civil Procedure govern the relevant notice requirements for the MCTLA.

Specifically, Pa.R.C.P. 3190 instructs that “[a] judgment in rem in

an action or proceeding upon a . . . municipal claim [or] tax claim

. . . shall be enforced against the real property subject to the lien

[or] claim . . . in accordance with Rules 3180 to 3183 governing

the enforcement of judgments in mortgage foreclosure.” Pa.R.C.P.

3181(a)(6), in turn, instructs that notice should be given in accordance with Pa.R.C.P. 3129.1 through 3129.3. The RETSL is

specifically exempted from this mandate, such that the RETSL’s

notice procedures are still applicable. Pa.R.C.P. 3191(a)(2)(viii).

App. 20

P.S. § 5860.601(a)(3) applicable to the RETSL, providing specific notice for owner-occupied properties).

Critically, Saratoga emphasizes the differences between the RETSL and the MCTLA relating to an

owner’s ability to retain or regain title to her property.

While the MCTLA provides a post-sale remedy of

redemption, the RETSL provides pre-sale protection

by allowing an owner to stay the tax sale by paying

twenty-five percent of the delinquent taxes prior to the

scheduled sale and agreeing to an installment plan to

pay the remainder within one year, pursuant to 72 P.S.

§ 5860.603, set forth supra at 6 n.8.

In light of these differences, Saratoga surmises

that it is “reasonable to hypothesize that the inclusion of a redemption provision in MCTLA – and the

omission of one from RETSL – was crafted to account

for the fact that it is much more likely that the owner

of a property will appear after an MCTLA upset sale

having not had notice of the sale or an opportunity

to gather the necessary funds to satisfy the tax lien

and remove the property from sale.” Saratoga’s Brief at

22. Moreover, it suggests that RETSL’s pre-sale ability

to stay the tax sale and the MCTLA’s post-sale right

of redemption serve similar purposes in providing

“breathing room” to the property owner. Id. at 23.

Saratoga argues that there are also differences

regarding the finality of the tax sales and the delivery

of the deed to the purchaser. Under the MCTLA, the

deed is delivered upon the sale, and the prior owner

cannot challenge the judgement underlying the sale.

App. 21

Saratoga’s Brief at 23-24 (citing 53 P.S. §§ 7293, 7281).

In such cases, Saratoga contends, the redemption provision “serves as an effective means to reverse” an upset tax sale. Id. at 24. In contrast, under the RETSL,

the deed is issued only after a court confirms the sale,

prior to which the owner can challenge aspects of the

sale. Id. at 23 (citing 72 P.S. § 5860.608); see also 72

P.S. § 5860.607(d).

In summary, Saratoga asserts that “the inclusion

of enhanced procedures to guarantee notice, an opportunity to stay the sale by making installment payments on the tax debt, and the right to attack the

procedural integrity of the sale before a sheriffs deed

is issued” provides a rational basis for the Legislature

to remove what Saratoga argues would result in “a

largely redundant means for an owner to prevent or

undo the effect of an upset sale.” Saratoga Brief at 26.

In addressing the Fouses’ constitutional challenge,

we initially recognize that the Fouses “carr[y] a heavy

burden” challenging the constitutional validity of the

RETSL’s prohibition against post-sale redemption.

Sands Bethworks Gaming, LLC v. Pennsylvania Dep’t

of Revenue, 207 A.3d 315, 319 (Pa. 2019). We reiterate

that lap duly enacted legislation enjoys a strong presumption of validity, and will only be declared void if it

violates the Constitution clearly, palpably and plainly.”

Id. (internal citations and quotation marks omitted).

The Fouses challenge the RETSL’s redemption

prohibition under the equal protection provisions of

App. 22

the federal and state constitutions.[16] In In its most

simplistic formulation, equal protection “demands that

uniform treatment be given to similarly situated parties.” Zauflik v. Pennsbury School Dist., 104 A.3d 1096,

1117 (Pa. 2014) (citation omitted). Our constitutions

have long been interpreted, nevertheless, to permit the

16

The Fouses, however, do not argue that the equal protection analysis differs under the two charters. Accordingly, we will

not address any potential distinctions other than to acknowledge

that this Court has previously recognized the difference in language utilized in the charters but proceeded to apply the same

analytical tests to both texts. See Zauflik v. Pennsbuty School

Dist., 104 A.3d 1096, 1117 n.10 (Pa. 2014).

In relevant part, the Fourteenth Amendment to the United

States Constitution provides,

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. 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 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.

Neither the Commonwealth nor any political subdivision thereof shall deny to any person the enjoyment of

any civil right, nor discriminate against any person in

the exercise of any civil right.

Id. § 26.

App. 23

legislative branches to draw classifications so long as

they are properly justified. Id. The required justification depends “upon which of three types a classification

belongs to, what the governmental interest is in promulgating the classification, and the relationship of that

interest to the classification itself.” Id. at 1117-18. Fundamental rights and suspect classifications trigger

strict scrutiny, whereas important rights and sensitive

classifications require intermediate scrutiny. Id. at

1118. All other legislative classifications are subject to

rational basis review. Id.

The Fouses initially argue for the application of

strict scrutiny claiming that the lack of a redemption

provision violated their property rights, which they

view to be fundamental rights. They rely in support on

Pennsylvania’s inclusion of the right “of acquiring, possessing and protecting property” as an “inherent and

indefeasible right” in Article I, Section 1, and they assert that this encompasses their asserted “right to reclaim their property upon payment of all costs.” Fouses’

Brief at 9.

After consideration, we conclude that the asserted

right is not a fundamental constitutional right but, instead, a statutory remedy, provided as part of a legislative tax collection process. In so doing, we emphasize

that the 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.” Cedarbrook Realty,

Inc., 399 A.2d at 377. Indeed, we have opined that statutes “authorizing the assessment of municipal taxes,

App. 24

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.” Bernitsky, 112 A.2d at 122 (quoting 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

Legislature.”[17] Id. at 123. In the shadow of the clear

legislative authority to structure the tax collection process, the Fouses provide no textual or historical argument supporting a constitutionally-enshrined right to

redeem their property by paying delinquent taxes and

costs after an upset sale. Absent the identification of

a constitutionally-protected right triggering an increased level of scrutiny, we conclude that rational basis review applies to the equal protection challenge

raised herein.

As we have often recounted, “rational-basis review

in equal protection analysis is not a license for courts

17

In Bernitsky, this Court addressed a claim by property

owners who had purchased a tract of land only to later discover

that it had been subject to a tax sale years prior. The property

owners attempted to assert a vested right to utilize a redemption

provision that existed under the tax collection statute in effect at

the time of the tax sale, despite the subsequent enactment of the

RETSL, which prohibited redemption. They claimed that it would

violate the constitution to divest them of their “right to redemption.” The Court opined that the “right of redemption was not a

vested right.” Bemitsky, 112 A.2d at 123. It further observed that

the “Hight of redemption did not exist at common law [but] was

created by statute.” Id.

App. 25

to judge the wisdom, fairness, or logic of legislative

choices.” Shoul v. Commonwealth, Dep’t of Transp. Bureau of Driver Licensing, 173 A.3d 669, 677 (Pa. 2017)

(quoting Heller v. Doe, 509 U.S. 312, 319 (1993)). Instead, the rational basis test affords substantial deference to legislative policy making. The review includes

two steps: “First we must determine whether the challenged statute seeks to promote any legitimate state

interest or public value. If so, we must next determine

whether the classification adopted in the legislation is

reasonably related to accomplishing that articulated

state interest or interests.” Curtis, 666 A.2d at 269.

Under rational basis review, the relationship between the classification and the legitimate state interest need not be set forth expressly by the Legislature.

Shoul, 173 A.3d at 677 (quoting Heller, 509 U.S. at 32021). 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.” Id. at 321. Indeed, given the complexity of taxation policy, “legislatures have especially

broad latitude in creating classifications and distinctions in tax statutes.” Armour v. City of Indianapolis,

566 U.S. 673, 680 (2012).

Applying these precepts to the question before the

Court, we first consider whether the Legislature had a

legitimate interest in enacting the RETSL’s prohibition against redemption. As noted above, we recognize

App. 26

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”)); Bernitsky, 112 A.2d at 122 (recognizing that

“[s]tates and cities cannot exist without taxation”). 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.” Bernitsky, 112 A.2d at 122. We have little

hesitation in concluding that these are legitimate state

interests.

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 and Saratoga that the lack of a

redemption provision in 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

App. 27

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 post-sale 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 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 twentyfive 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.

App. 28

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, which all agree is a legitimate state

interest. The rationality of these explanations are not

undermined, as suggested by the Fouses and the dissent in the Commonwealth Court, 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.

We again emphasize that “[t]he time, the mode,

and the measure of taxation, are committed altogether

and exclusively to the legislative discretion.” Bernitsky,

112 A.2d at 122 (quoting In re Gault, 33 Pa. at 100). We

conclude that 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. Ill,

§ 20 (expressly granting the Legislature the “power to

classify counties . . . according to population . . . ”).

As we conclude that the Fouses failed to demonstrate that the RETSL’s prohibition against post-sale

redemption clearly, plainly, and palpably violates the

equal protection provisions of the United States or Pennsylvania Constitutions, we affirm the Commonwealth

App. 29

Court’s order approving the trial court’s denial of the

Fouses’ Petition to Redeem.

Chief Justice Saylor and Justices Todd, Donohue,

Dougherty, Wecht and Mundy join the opinion.

App. 30

204 A.3d 1028 (Pa.Cmwlth. 2019)

Fred Lohr and Jolene K. FOUSE, Appellants

v.

SARATOGA PARTNERS, L.P. and

Huntingdon County Tax Claim Bureau

No. 128 C.D. 2018

Commonwealth Court of Pennsylvania

March 7, 2019

Argued December 11, 2018

Appealed from No. CP-31-CV-1701-2016, Common

Pleas Court of the County of Huntingdon, Kurtz, Senior Judge.

Gregory A. Jackson, Huntingdon, for appellants.

Justin K. Houser, Lock Haven, for appellee Saratoga Partners, L.P.

BEFORE: HONORABLE ROBERT SIMPSON,

Judge, HONORABLE PATRICIA A. McCULLOUGH,

Judge, HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION

FIZZANO CANNON, JUDGE

Fred Lohr and Jolene K. Fouse (together, the

Fouses)[1] appeal the October 23, 2017 order of the

1

Saratoga Partners, L.P. (Bidder) notes that “[a]lthough [the

Fouses] are consistently captioned as ‘Fred Lohr & Jolene K.

App. 31

Court of Common Pleas of Huntingdon County (trial

court) denying the Fouses’ petition to redeem property

sold at an upset tax sale (Petition to Redeem) and holding that the Pennsylvania Real Estate Tax Sale Law’s[2]

(RETSL) lack of a post-tax-sale right of redemption

does not violate either the Equal Protection Clause of

the United States Constitution or Article III of the

Pennsylvania Constitution. Upon review, we affirm.

The Fouses are record owners[3] of two parcels of

real property (the Property) located in Lincoln Township within Huntingdon County, a sixth class Pennsylvania county.[4] Petition to Redeem at 2; Trial Court

Memorandum, 1/5/18 at 2. On or about September 26,

2016, the Huntingdon County Tax Claim Bureau (Tax

Claim Bureau) conducted an upset tax sale of the Property pursuant to RETSL. Petition to Redeem at 2. Saratoga Partners, L.P. (Bidder) was the highest bidder

Fouse’ throughout this appeal, it is [Bidder’s] understanding that

their names are Fred Lohr Fouse and Jolene K. Fouse.” Bidder’s

Brief at 1 n.1 (emphasis in original). Further, we note that appellants identified themselves as “Fred Lohr Fouse and Jolene K.

Fouse” before the trial court in their Brief in Support of their Petition to Redeem. See Petition to Redeem at 1.

2

Act of July 7, 1947, P.L. 1368, as amended, 72 P.S.

§§ 5860.101-5860.803.

3

As of December 1, 2016, the Fouses averred that “Wo date,

the sale conducted by the Huntingdon County Tax Claim Bureau

has not been confirmed and Saratoga Partners has not been issued a deed for the Property.” Petition to Redeem at 2.

4

See AOPC: County Classes, available at http://www.pacourts.

us/news-and-statistics/research-and-statistics/dashboard-table-ofcontents/resources/WebHelp/General_Information/County_Class.htm

(last visited Jan. 9, 2019).

App. 32

at the sale and paid the Tax Claim Bureau a sum of

$ 27,795.45 for the Property. Id. Despite the Property

being sold pursuant to RETSL, on December 1, 2016,

the Fouses filed their Petition to Redeem with the trial

court, attempting to avail themselves of the post-taxsale right of redemption contained in the Municipal

Claims and Tax Liens Act (MCTLA).[5] Petition to Redeem at 1; Bidder’s Brief at 1. In their Petition to Redeem, the Fouses claimed that, as “owner[s] of the

Property,” they “have the right to redeem [it] pursuant

to [53 P.S. § 7293], and [to] extinguish any right, claim,

or title held by Saratoga Partners upon payment of any

actual costs incurred in connection to the sale.” Petition to Redeem at 2. The Fouses also asked the trial

court to “issue a [r]ule upon Respondent, Saratoga

Partners to show cause why the relief requested . . .

should not be granted and to issue an [o]rder to . . . the

Tax Claim Bureau, to withhold any deed it intends to

issue to Saratoga Partners until such time as the [r]ule

[is] satisfied.” Id. at 3. The Fouses filed a Brief in

5

Act of May 16, 1923, P.L. 207, as amended, 53 P.S. §§ 71017505. Section 32 of the MCTLA provides as follows:

The owner of any property sold under a tax or municipal claim, or his assignees, or any party whose lien or

estate has been discharged thereby, may, except as provided in subsection (c) of this section, redeem the same

at any time within nine months from the date of the

acknowledgment of the sheriff ’s deed therefor, upon

payment of the amount bid at such sale[.]

53 P.S. § 7293(a). However, RETSL, which governed the upset tax

sale, provides that “[t]here shall be no redemption of any property

after the actual sale thereof.” Section 501(c) of the RETSL, 72 P.S.

§ 5860.501(c).

App. 33

Support of their Petition to Redeem, arguing that

RETSL’s lack of a post-tax-sale right of redemption

impinges on due process and equal protection rights

under the United States Constitution and the Pennsylvania Constitution, in addition to violating the Uniformity Clause of the Pennsylvania Constitution. Brief

in Support at 5. On October 23, 2017, the trial court

issued an order denying the Fouses’ Petition to Redeem, due to its finding that RETSL’s lack of a posttax-sale right of redemption does not violate either the

Equal Protection Clause of the United States Constitution or Article Ill of the Pennsylvania Constitution.[6]

Trial Court Order, 10/23/17.

The Fouses timely appealed[7] and filed a Statement of Errors Complained of on Appeal, alleging that

“[t]he failure of [RETSL] to provide taxpayers with a

redemption period violates both the Equal Protection

Clause of the United State Constitution and Article III

of the Constitution of the Commonwealth of Pennsylvania.” Huntingdon County Prothonotary Docket

6

The Fouses did not provide a verbatim transcript of the proceedings giving rise to the appeal and claim one does not exist.

Bidder contends that “some or all of [the Fouses’] appellate arguments are arguably waived.” Bidder’s Brief at 2 n.3 (citing Smith

v. Smith, 431 Pa.Super. 588, 637 A.2d 622, 623-24 (1993) (where

appellant’s failure to secure certified transcript of proceedings

precludes meaningful appellate review of issue, issue is deemed

waived)). However, this Court does not find that a verbatim transcript is necessary in the case sub judice for meaningful appellate

review.

7

The Fouses initially appealed to the Superior Court, which

transferred the matter to this Court.

App. 34

Entries at 3; Statement of Errors Complained of on

Appeal, 12/18/17.

On January 5, 2018, the trial court issued a memorandum stating the reasons for its October 23, 2017

order. Trial Court Memorandum, 1/5/18 at 1. The trial

court held that the Fouses’ equal protection challenge

warranted rational basis review. Id. at 5 (citing Curtis

v. Kline, 542 Pa. 249, 666 A.2d 265, 267-68 (1995)). The

trial court also found that “the dominant purposes of

[RETSL] [are] to provide speedier and more efficient

procedures for enforcing tax liens and to improve the

quality of titles obtained at a tax sale.” Id. (quoting

Povlow v. Brown, 12 Pa.Cmwlth. 303, 315 A.2d 375, 377

(1974)). The trial court noted its opinion that the desired post-tax-sale “equity of redemption . . . would . . .

have the effect of making tax titles less attractive than

they now are[,] . . . thus increasing the chance that the

amounts bid at tax sales will be inadequate.” Id. at 6

(quoting Povlow, 315 A.2d at 377 n.4). The trial court

further opined that “[a] speedier, more efficient procedure that enhance[s] the quality of titles proffered at

sale certainly promotes the [S]tate’s interest in tax collection.” Id. The trial court noted that Article Ill, Section 20 of the Pennsylvania Constitution “specifically

permits classification by population.” Id. Thus, the trial

court held that the Fouses failed to establish that

RETSL’s lack of a post-tax-sale right of redemption

contravenes the right to equal protection under the

law. Id. at 6-7 (citing Pa. Liquor Control Bd. v. The Spa

Athletic Club, 506 Pa. 364, 485 A.2d 732, 735 (1984)).

App. 35

Before this Court,[8] the Fouses argue that the trial

court should have applied strict judicial scrutiny, rather than rational basis review, to determine whether

RETSL’s lack of a post-tax-sale redemption provision

violates the Fouses’ rights to due process and equal

protection under the law.[9] Fouses’ Brief at 7-8. The

Fouses further contend that RETSL’s lack of such a

provision does not withstand even rational basis review. Id. at 6 & 11.

As a preliminary matter, we note that the Fouses

have waived their due process argument for failure to

raise it in their statement of errors complained of on

appeal. Pursuant to Pennsylvania Rule of Appellate

8

In tax sale cases, our review is limited to determining

whether the trial court abused its discretion, rendered a decision

with a lack of supporting evidence, or clearly erred as a matter of

law. Murphy v. Monroe Cty. Tax Claim Bureau, 784 A.2d 878, 880

n.2 (Pa.Cmwlth. 2001). The Tax Claim Bureau failed to file a brief

as ordered by this Court and, therefore, was precluded from participating on appeal. See Commonwealth Court Order, 9/17/18.

9

In their Rule 1925(b) statement, the Fouses specified that

they are pursuing an equal protection challenge under the United

States Constitution. However, before this Court, the Fouses appear to argue their equal protection claim under the Pennsylvania Constitution. This discrepancy is immaterial, as “[t]he equal

protection provisions of the Pennsylvania Constitution are analyzed under the same standards used by the United States Supreme Court when reviewing equal protection claims under the

Fourteenth Amendment.” Jackson v. Commonwealth, 143 A.3d

468, 476 n.12 (Pa.Cmwlth. 2016) (quoting Love v. Borough of

Stroudsburg, 528 Pa. 320, 597 A.2d 1137, 1139 (1991)); see also

Republican Party of Pa. v. Cortes, 218 F.Supp.3d 396, 417 (E.D.

Pa. 2016) (stating, “Pennsylvania’s equal protection and due process provisions are coextensive with the corresponding provisions

of the United States Constitution”).

App. 36

Procedure 1925(b)(4)(vii), “[i]ssues not included in the

[s]tatement [of errors complained of on appeal] and/or

not raised in accordance with the provisions of this

paragraph (b)(4) are waived.” Pa. R.A.P. 1925(b)(4)(vii);

see City of Philadelphia v. Lerner, 637 Pa. 605, 151 A.3d

1020, 1024 (2016) (reaffirming the “well-settled,

bright-line rule” that “issues not raised in a Rule

1925(b) statement will be deemed waived” and holding

that “[b]y failing to comply with Rule 1925(b), [the appellant] waived the issue that he . . . request[ed] [the]

Court to address”). Accordingly, we will not address the

Fouses’ due process argument.

With respect to the Fouses’ equal protection argument, we are mindful that “[a] statute duly enacted by

the General Assembly is presumed valid[.]” W. Mifflin

Area Sch. Dist. v. Zahorchak, 607 Pa. 153, 4 A.3d 1042,

1048 (2010). “The party seeking to overcome the presumption of validity must meet a formidable burden.”

Commonwealth v. Means, 565 Pa. 309, 773 A.2d 143,

147 (2001). “Legislation will not be invalidated unless

it clearly, palpably and plainly violates the constitution

and any doubts are to be resolved in favor of a finding

of constitutionality.” Appeal of McNelly, 122 Pa.Cmwlth.

601, 553 A.2d 472, 476-77 (1989) (citing Pa. Liquor

Control Bd., 485 A.2d at 732.

The Equal Protection Clause of the Fourteenth

Amendment to the United States Constitution provides,

in relevant part: “No State shall . . . deny to any person

within its jurisdiction the equal protection of the

laws.” U.S. CONST. amend. XIV, § 1. The corresponding

App. 37

portions of the Pennsylvania Constitution provide as

follows:

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

Neither the Commonwealth nor any political subdivision thereof shall deny to any person the enjoyment of any civil right, nor discriminate against any

person in the exercise of any civil right. PA. CONST.

art. I, § 26. “In analyzing [an] equal protection challenge to [a statute], we must first determine the appropriate level of judicial scrutiny to be applied.” Zauflik

v. Pennsbury Sch. Dist., 72 A.3d 773, 790 (Pa.Cmwlth.

2013), aff ’d, 629 Pa. 1, 104 A.3d 1096 (2014) (citing

Smith v. City of Philadelphia, 512 Pa. 129, 516 A.2d

306, 311 (1986)). “Strict scrutiny of a legislative classification applies only when the classification impermissibly interferes with the exercise of a fundamental

right or operates to the peculiar disadvantage of a suspect class.” Zauflik, 72 A.3d at 790 (quoting Mass. Bd.

of Retirement v. Murgia, 427 U.S. 307, 312, 96 S.Ct.

2562, 49 L.Ed.2d 520 (1976)) (internal quotation marks

omitted). To survive strict scrutiny, a classification

“must be justified by a compelling government interest

and . . . must be strictly construed.” Id. at 790-91 (citing

Smith, 516 A.2d at 311). “If the classification involves

an important government interest,” then intermediate

App. 38

judicial scrutiny is applied to determine whether the

classification “serve[s] important governmental objectives” and is “substantially related to the achievement

of those objectives.” Id. (quoting Craig v. Boren, 429

U.S. 190, 197, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976))

(brackets omitted). “Finally, if the classification does

not involve either fundamental rights, suspect classes,

or sensitive or important government interests, it will

be upheld if there is any rational basis for the classification.” Id. (quoting Smith, 516 A.2d at 311) (internal

quotation marks omitted).

The Fouses argue that the trial court erred in applying the rational basis level of scrutiny to determine

whether RETSL’s lack of a post-tax-sale redemption

right violates their equal protection rights. Fouses’

Brief at 7. The Fouses contend that RETSL’s failure to

provide residents of third[10] to eighth class counties

with the opportunity to redeem property following a

tax sale “infringes upon a ‘fundamental right,’ ” such

that “a reviewing court must apply the strict scrutiny

test.” Fouses’ Brief at 8. The Fouses maintain that

“[t]he Pennsylvania Constitution classifies the acquisition and possession of property as a fundamental

right” implicating a strict scrutiny standard and assert

that “[t]he classification of citizens based upon the

10

The Fouses misstate the applicability of RETSL, which applies to counties of the second A to eighth class. See Section 102

of RETSL, 72 P.S. § 5860.102 (defining “County” as “a county of

the second A, third, fourth, fifth, sixth, seventh or eighth class,

including counties of these classes which have adopted or may

adopt home rule charters under . . . the ‘Home Rule Charter and

Optional Plans Law[, 53 Pa.C.S. §§ 2901-2984]’ ”).

App. 39

population of the municipality in which they live does

not serve a compelling governmental interest.” Id. at 6.

Specifically, the Fouses, citing R. v. Department of

Public Welfare, 535 Pa. 440, 636 A.2d 142, 149 (1994),

reason that “reputational rights, which are mentioned in the same part of Article I, Section 1 . . . as

property rights, are currently deemed ‘fundamental’

by our [S]tate’s Supreme Court” and, therefore, property rights share equal stature. Fouses’ Brief at 9. Further, the Fouses maintain that “if the right to be secure

in one’s home is a sacrosanct, inviolate, and fundamental right, so, then, is the right to acquire, possess, and

protect the property on which the home is situated.”

Id. The Fouses also claim that the lack of a post-taxsale right of redemption under RETSL “does nothing

to advance the government’s compelling interest in collecting taxes, and . . . is certainly not narrowly tailored

to that end,” such that “Pennsylvania’s tax sale scheme

cannot withstand strict scrutiny review.” Id. at 11.

On the other hand, Bidder argues that the trial

court’s order should be affirmed because RETSL’s lack

of a post-tax-sale “redemption provision does not violate . . . the Equal Protection Clause of the Fourteenth

Amendment of the United States Constitution [or] the

[c]orresponding [p]rovisions of the Pennsylvania Constitution[.]” Bidder’s Brief at 4. Bidder asserts that the

Fouses have mischaracterized the right at issue, but

further contends that even if the Fouses’ characterization were correct, “precedent unequivocally holds that

one’s right to hold and enjoy property is not a fundamental right, the derogation of which would invite

App. 40

strict scrutiny.” Id. (emphasis in original) (citing McSwain v. Commonwealth, 103 Pa.Cmwlth. 326, 520

A.2d 527, 530 (1987)). Bidder thus claims that the

Fouses fail to meet their “heavy burden to overcome

[RETSL’s] presumption of constitutionality.” Id. at 4

(internal citations omitted) (quoting Appeal of McNelly,

553 A.2d at 476).

In McSwain, this Court held that “the right to

freely hold and dispose of one’s property” is not a fundamental right. McSwain, 520 A.2d at 530. We noted

that “[w]hile someone deprived of property is entitled

to due process, due process is not synonymous with a

fundamental right.” Id. at 530. We concluded that the

rational basis test is appropriate when addressing the

right to hold and dispose of one’s property. See id. at

531. Admittedly, McSwain does not concern the right

of redemption, but rather involves an equal protection

challenge to a city ordinance requiring all vacant

dwellings to first pass housing code inspection prior to

their rental, lease or occupation. Id. at 528. However,

whether a particular statute accords a right of redemption directly implicates a property owner’s ability to

hold and use the property. Because the right to “freely

hold and dispose of property subsumes the Fouses’ asserted right to post-tax-sale redemption, we find that

the Fouses’ equal protection challenge warrants rational basis review.[11]

11

Although not addressed by the Fouses, we further note

that the constitutional challenge sub judice warrants rational basis review because RETSL’s distinction on the basis of county

class, which is based on population, implicates neither a suspect

App. 41

Nonetheless, the Fouses argue that Pennsylvania’s tax sale scheme “does not survive even rational

basis scrutiny.” Fouses’ Brief at 11. The Fouses contend

that “to survive rational basis scrutiny under Pennsylvania law, the disallowance of redemption under

[RETSL], as opposed to [MCTLA] which allows redemption, must bear a substantial relation to the object of Pennsylvania’s tax sale laws: the collection of

delinquent taxes.” Id. at 12. The Fouses assert that

“[t]he infringement on the protected property rights of

citizens living in [second A] through [e]ighth class

counties does not bear any relationship to the ends of

collecting delinquent taxes, let alone a substantial

one[.]” Id. at 13. Bidder counters that “[t]he lack of a

redemption provision in [RETSL] bears a ‘fair and substantial’ relationship to the legislative interest as expressed in the statute.” Bidder’s Brief at 11.

In applying the rational basis test, we must first

“determine whether the challenged statute seeks to

promote any legitimate state interest or public value.

If so, we must next determine whether the classification adopted in the legislation is reasonably related to

accomplishing that articulated state interest or

class nor a sensitive classification. See Wings Field Pres. Assocs.,

L.P. v. Dep’t of Transp., 776 A.2d 311, 318-19 (Pa.Cmwlth. 2001)

(evaluating an equal protection challenge to a state statute that

only applied to “count[ies] of the second class A having a population in excess of 675,000 persons” under rational basis review);

see also Small v. Horn, 554 Pa. 600, 722 A.2d 664, 672 nn.14 & 15

(1998) (citations omitted) (suspect classes include race and national

origin, and quasi-suspect classes, also referred to as “sensitive

classifications” in Pennsylvania, include gender and legitimacy).

App. 42

interests.” Curtis, 666 A.2d at 269. “Under the [E]qual

[P]rotection [Clause][,] guarantees, distinctions and

classifications in legislation are not prohibited, but

must only bear some relationship to the ends to be

achieved by the law.” McSwain, 520 A.2d at 530 (citing

Stottlemyer v. Stottlemyer, 458 Pa. 503, 329 A.2d 892

(1974)). “[T]he Fourteenth Amendment permits the

States a wide scope of discretion in enacting laws

which affect some groups of citizens differently than

others.” McGowan v. Maryland, 366 U.S. 420, 425, 81

S.Ct. 1101, 6 L.Ed.2d 393 (1961). Further, equal protection principles “relate[ ] to equality between persons

as such, rather than between areas and . . . territorial

uniformity is not a constitutional prerequisite.” Id. at

427, 81 S.Ct. 1101. Thus, “[t]he prohibition against

treating people differently under the law does not preclude the Commonwealth from resorting to legislative

classifications, provided that those classifications are

reasonable rather than arbitrary” and “rest upon some

ground of difference which justifies the classification

and has a fair and substantial relationship to the object of the legislation.” Curtis, 666 A.2d at 26768 (citations omitted). “A classification, though discriminatory,

is not arbitrary or in violation of the equal protection

clause if any state of facts reasonably can be conceived

to sustain that classification.” Curtis, 666 A.2d at 268

(citations omitted). “‘Fair and substantial’ means that

the classification must be reasonable and not arbitrary,

and the classification must rest upon some ground of

difference which has a fair and substantial relation

to the object of the legislation, so that all persons

similarly situated shall be treated alike.” Appeal of

App. 43

McNelly, 553 A.2d at 476 (quoting Kroger Co. v. O’Hara

Twp., 481 Pa. 101, 392 A.2d 266 (1978)). Thus, “a legislative classification need bear only a rational relationship to the object sought to be achieved by the law, and

will be overturned only if it rests on grounds wholly

irrelevant to the achievement of the state’s purpose.”

McSwain, 520 A.2d at 530 (citing McGowan, 366 U.S.

at 425, 81 S.Ct. 1101).

When applying “the rational basis test . . . [to an]

equal protection . . . challenge[ ] . . . , a court must uphold a statute as rational if it can conceive of any plausible reason for the statute.” Peake v. Commonwealth,

132 A.3d 506, 519 n.15 (Pa.Cmwlth. 2015) (internal citation and quotation marks omitted). Thus, when considering an equal protection challenge, “the reviewing

court is free to hypothesize reasons the legislature

might have had for the classification[,]” and “[i]f the

court determines that the classifications are genuine,

it cannot declare the classification void even if it might

question the soundness or wisdom of the distinction.”

Curtis, 666 A.2d at 268. As we have held previously,

[t]he problems of government are practical

ones and may justify, if they do not require,

rough accommodations[ ]—illogical, it may be,

and unscientific. . . . We do not wish to inhibit

state experimental classifications in . . . practical and troublesome area[s], but inquire only

whether the challenged distinction rationally

furthers some legitimate, articulated state

purpose.

App. 44

Strong v. County of Erie, 122 Pa.Cmwlth. 461, 552 A.2d

350, 353-54 (1989) (quoting Metropolis Theater Co. v.

City of Chicago, 228 U.S. 61, 69-70, 33 S.Ct. 441, 57

L.Ed. 730 (1913)). Moreover,

[i]t is not necessary that the rational basis for

a classification be set forth in the statute or in

the legislative history. Nor is it necessarily incumbent upon the government agency to advance the reasons for the act in defending the

classification. The burden must remain upon

the person challenging the constitutionality of

the legislation to demonstrate that it does not

have a rational basis. Should the reviewing

court detect such a basis, from whatever

source, the legislation must be upheld.

Pa. Liquor Control Bd., 485 A.2d at 735.

The question of whether RETSL’s lack of a posttax-sale redemption provision contravenes equal protection guarantees has not yet been squarely addressed by

a Pennsylvania court.[12] Nevertheless, we hold that

RETSL’s lack of a post-tax-sale right of redemption

provision does not violate the right to equal protection

12

This question has reached this Court previously but was

not decided for different reasons. See Liggett v. Tax Claim Bureau

Fayette Cty. (Pa.Cmwlth., No. 2099 C.D. 2012, 2015 WL 5161319,

filed Feb. 17, 2015) (holding appellants waived their equal protection claim); Lewicki v. Washington Cty. (Pa.Cmwlth., No. 2371

C.D. 2013, 2014 WL 10316922, filed Dec. 4, 2014) (finding appellants waived their equal protection challenge); Battisti v. Tax

Claim Bureau of Beaver Cty., 76 A.3d 111, 114 (Pa.Cmwlth. 2013)

(declining to reach the equal protection claim and remanding the

matter to the trial court for an evidentiary hearing).

App. 45

under the law. The Supreme Court of Pennsylvania has

declared that “the purpose of tax sales [under RETSL]

is not to strip the taxpayer of his property but to

[e]nsure the collection of taxes.” Tracy v. Chester Cty.,

Tax Claim Bureau, 507 Pa. 288, 489 A.2d 1334, 1339

(1985) (quoting Hess v. Westerwick, 366 Pa. 90, 76 A.2d

745, 748 (1950)). Further, this Court has held that

“[t]he dominant purpose of [RETSL] is to provide

speedier and more efficient procedures for enforcing

tax liens and to improve the quality of title of the property sold at a tax sale.” Pacella v. Washington Cty. Tax

Claim Bureau, 10 A.3d 422, 428 (Pa.Cmwlth. 2010).

Thus, it is established that RETSL promotes a legitimate government interest. Further, we find the General Assembly’s classification—withholding the right

of post-tax-sale redemption from property owners in

second A through eighth class counties under RETSL

while according such a right to property owners in first

and second class counties under the MCTLA—bears a

rational relation to the governmental objective. As we

are “free to hypothesize reasons the legislature might

have had for the classification,” Curtis, 666 A.2d at 268,

we posit that Pennsylvania’s first and second class

counties[13] have larger pools of prospective buyers at

tax sales. These larger pools of prospective buyers

make it more likely that a property will be sold at a tax

sale. Under these circumstances, the need for owner

13

Philadelphia County and Allegheny County, respectively.

See AOPC: County Classes, available at http://www.pacourts.usinewsand-statistics/research-and-statistics/dashboard-table-of-contents/

resources/WebHelp/General_Information/County_Class.htm (last

visited Jan. 9, 2019).

App. 46

protection is greater, and that need is met by the equity

of redemption in the more populous counties. Further,

as these counties have a higher population and, therefore, a larger taxable base from which to derive revenue, 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.

As we are able to conceive of plausible reasons for

the statute, and the legislative classification does not

rest on grounds wholly irrelevant to the achievement

of the state’s purpose, we find that RETSL’s lack of a

post-tax-sale right of redemption provision satisfies rational basis review. See Strong, 552 A.2d at 353 (emphasis in original) (providing, “it [i]s not for the court

to determine whether in fact the [challenged statute]

would promote legitimate governmental purposes but

whether the ‘[state] [legislature could rationally have

decided’ it would”) (quoting Minnesota v. Clover Leaf

Creamery Co., 449 U.S. 456, 466, 101 S.Ct. 715, 66

L.Ed.2d 659 (1981))[14] Moreover, the “formidable”

14

See, e.g., Leonard v. Thornburgh, 507 Pa. 317, 489 A.2d

1349, 1352-53 (Pa. 1985) (holding that a statute providing for a

lower wage tax cap on non-residents of the City of Philadelphia

(City) than on residents of the City did not impinge on equal protection rights and was based on a “legitimate distinction,” because

“non-resident wage earners utilize services provided by the City

. . . to a lesser extent than do residents,” some services “are offered

only to residents” and “residents of the [C]ity have recourse

through their own elected representatives . . . in the event that

they believe their tax rates are excessive”); Appeal of McNelly, 553

A.2d at 476 (holding that a law limiting a school employee residency requirement to school districts of the first class and first

App. 47

burden of persuasion rests on the Fouses alone, see

Means, 773 A.2d at 147, and they have failed to present

any evidence or any reason under the law establishing

why RETSL does not pass constitutional muster. See

Appeal of McNelly, 553 A.2d at 476-77 (finding appellants “clearly failed to meet [their] burden” to establish

that a statute violated their right to equal protection

under the law, when “[t]hey . . . offered no evidence

whatsoever to support their claim that there were no

relevant distinctions or similarities between themselves and the Philadelphia and Pittsburgh school districts”).

Accordingly, for the foregoing reasons, we affirm

the trial court’s decision to deny the Fouses’ Petition to

Redeem and its conclusion that RETSL’s lack of a posttax-sale right of redemption provision does not violate

the right to equal protection under the law.

class A was “rationally related to legitimate governmental interests,” as the school districts could “be distinguished on the basis

of population, high unemployment, lack of adequate tax base,

enhancement of the quality of employee performance and the general economic flow from local expenditures of employees’ salaries”); Strong, 552 A.2d at 351-52 (holding that an ordinance

setting the compensation for municipal tax collectors at a percentage of the assessed value of municipal property for which they

would collect taxes but capping compensation for the tax collector

of a particular township was rationally related to the legitimate

governmental objectives of “[r]educing county costs and achieving

uniformity among municipal tax collectors”).

App. 48

ORDER

AND NOW, this 7th day of March, 2019, the October 23, 2017 order of the Court of Common Pleas of

Huntingdon County is AFFIRMED.

DISSENTING OPINION

McCULLOUGH, JUDGE

Fred and Jolene Fouse had their property sold at

an upset tax sale due to delinquent taxes that they

owed. If the property was located in Philadelphia

County or Allegheny County, counties that proceed

solely and exclusively under the Municipal Claims and

Tax Liens Act (MCTLA),[1] the Fouses would have possessed a right to redeem their property “within nine

months from the date of the acknowledgment of the

sheriff ’s deed . . . upon payment of the amount bid

at such sale[.]” Section 32(a) of the MCTLA, 53 P.S.

§ 7293(a).[2] However, the Fouses’ place of residence

and the property is sited in Huntingdon County, a sixth

class county, and the Real Estate Tax Sale Law

1

Act of May 16, 1923, P.L. 207, as amended, 53 P.S. §§ 7101-

7505.

2

There is an exception for the City of Pittsburgh, where tax

sales are governed by the Second Class City Treasurer’s Sale and

Collection Act, Act of October 11, 1984, P.L. 876, as amended, 53

P.S. §§ 27101-27605 (Treasurer’s Act). Under section 304 of the

Treasurer’s Act, the owner of the property “may redeem the property by payment of the full amount of the claims for which the

property was sold . . . [w]ithin 90 days after the date of the treasurers sale.” 53 P.S. § 27304.

App. 49

(RETSL)[3] applies to this county. See sections 102

and 201 of the RETSL, 72 P.S. §§ 5860.102 (defining

“county” in pertinent part as “a county of the second A,

third, fourth, fifth, sixth, seventh or eighth class[.]”),

201 (“[A] Tax Claim Bureau is hereby created in each

county in the office of the county commissioners.”).

Unlike the MCTLA, under the RETSL, “[t]here shall

be no redemption of any property after the actual

sale thereof.” Section 501(c) of the RETSL, 72 P.S.

§ 5860.501(c).

The Fouses contend that the inclusion of a postsale right to redemption in the MCTLA, and the exclusion of such a right from the RETSL, violate principles

of equal protection. “[I]n evaluating this question, we

employ the rational basis test, under which a statutory

classification will be upheld so long as it bears a reasonable relationship to accomplishing a legitimate

state purpose.” Commonwealth v. Duda, 592 Pa. 164,

923 A.2d 1138, 1151 (2007).

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. In City of Allentown v.

Kauth, 874 A.2d 164 (Pa.Cmwlth. 2005), this Court explained that “[t]he RETSL’s mechanisms for upset and

judicial sales are virtually identical to those in the

MCTLA.” Id. at 166. We observed that “[t]he MCTLA

and RETSL . . . permit, through strikingly similar and

3

Act of July 7, 1947, P.L. 1368, as amended, 72 P.S.

§§ 5860.101-5860.803.

App. 50

parallel mechanisms, a taxing authority to expose a

delinquent property for an upset sale and, in the absence of receiving the upset price by which to satisfy

the delinquent taxes and claims, a ‘free and clear’ judicial sale.” Kauth, 874 A.2d at 168-69. Indeed, “the two

statutes are very similar and operate concurrently

with one another” and are essentially one and the

same; although they are technically two different statutes, both contain “procedures for the resolution of the

same disputes[.]” Kauth, 874 A.2d at 169. Additionally,

“Whether 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.” Kauth, 874 A.2d at 169 (emphasis added).

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

App. 51

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 implausible in light of

section 39.5 of the MCTLA,[4] 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.

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”);[5] see also

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”). Hence,

4

Added by section 8 of the Act of August 14, 2003, P.L. 83.

Shapiro was overruled in part on other grounds by Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662

(1974).

5

App. 52

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.[6]

In this vein, I view the right of redemption as 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. While the General Assembly unconditionally

granted homeowners with property in Philadelphia

County and Allegheny County such a right, it did not

provide or expressly bestow this right upon any other

homeowner of the other counties in the Commonwealth who fall within the ambit of the RETSL. It

6

This point is buttressed by the fact that, under the Treasurers 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

—which occurs after the sale has been consummated—under

the MCTLA, 53 P.S. § 7293(a). See Brentwood Borough School

District v. HSBC Bank USA, 111 A.3d 807, 808-10 and n.2

(Pa.Cmwlth. 2015) (explaining that the Treasurer’s Act applies to

the City of Pittsburgh, and not to the Borough of Brentwood,

which is located in Allegheny County just outside the City of

Pittsburgh, and analyzing the right of redemption under the

MCTLA for a tax sale conducted in connection with property located in the Borough of Brentwood). 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.

App. 53

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. In terms

of equal protection, the federal and state constitutions

“both reflect the principle that like persons in like circumstances must be treated similarly” and “a classification will be struck down if it is based upon artificial

or irrelevant distinctions[.]” Harrisburg School District v. Zogby, 574 Pa. 121, 828 A.2d 1079, 1088-89

(2003).

Upon review, 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.

Through its operation, the MCTLA grants a privilege

and benefit upon one class of individuals as a matter

of right and, apart from a mere preference for one

group over another, I cannot ascertain why the General

Assembly has not afforded the same right to the class

of individuals covered under and subjected to the

RETSL. Consequently, I would conclude that the

RETSL fails the rational basis test and would declare

that the statute, on its face, violates the rights of equal

protection under the United States and Pennsylvania

Constitutions. I, therefore, would enjoin enforcement

of the RETSL and enter an order requiring all the

counties in the Commonwealth to utilize the MCTLA

(which they are already authorized to do) as the sole

App. 54

procedure through which to conduct tax sales,[7]

thereby ensuring that all the homeowners in this Commonwealth are treated alike and are vested with the

right to redeem their property.[8]

Hence, I respectfully dissent.

7

This would be to the exclusion of the City of Pittsburgh,

which would continue to conduct tax sales under the Treasurer’s

Act.

8

See Commonwealth v. Butler, 458 Pa. 289, 328 A.2d 851,

860 (1974) (Pomeroy, J., concurring) (“Where a statute denies

equal protection by making an unconstitutional classification, the

classification can be abolished by making the statute operate either on everyone or on no one,” quoting Developments in the

Law—Equal Protection, 82 HARV. L. REV. 1065, 1136-37 (1969)).

App. 55

IN THE COURT OF COMMON PLEAS

OF HUNTINGDON COUNTY,

PENNSYLVANIA

CIVIL DIVISION

FRED LOHR and

JOLENE K. FOUSE,

Plaintiffs

vs.

SARATOGA PARTNERS, L.P.,

and HUNTINGDON COUNTY

TAX CLAIM BUREAU,

Defendants

:

:

:

:

: NO. 2016-1701

:

:

:

:

ORDER

AND NOW, this 23rd day of October, A.D., 2017,

after argument held October 10, 2017, it is Ordered

that the “Petition to Redeem Property Sold at Tax Sale”

filed on behalf of Plaintiffs is denied since the Court is

satisfied that the Real Estate Tax Sale Law of 1947

does not violate either the Equal Protection Clause of

the United State Constitution or Article Ill of the Pennsylvania Constitution.

BY THE COURT:

/s/ Stewart Kurtz

S.J.