Court Sets Aside Tax Sale Due To Inadequate Proof Of Service
Written by: Alan Nochumson
In an unreported memorandum opinion issued by Commonwealth Court Senior Judge James Gardner Colins, the Commonwealth Court in City of Philadelphia v. Morris Park Congregation of Jehovah’s Witnesses, 2016 Pa. Commw. Unpub. LEXIS 194 (March 7, 2016), set aside a tax sale because the city of Philadelphia failed to adequately establish the manner in which the sheriff of Philadelphia served the property owner in the underlying tax foreclosure proceedings.
In Philadelphia, tax foreclosure proceedings are governed by the Municipal Claims and Tax Lien Act, 53 P.S. Section 7101 et seq.
Under the act, the city of Philadelphia must file a petition asking the trial court to issue a decree scheduling the property for a tax sale as a result of delinquent real estate taxes being due on account of the property. Afterward, the trial court then issues a rule that must be served on the property owner and other interested parties. In the rule, the property owner and the other interested parties must explain why the property should not be so sold.
The act specifies the city’s petition and the rule issued by the trial court must be served by way of first-class mail, certified mail, and posting of the property.
Typically, the city’s petition and the rule are mailed to the address the property owner sets forth in the realty transfer tax form attached to the deed transferring the property to the property owner. The city of Philadelphia’s Department of Revenue also provides the property owner with a way to change the “notice” address through the filing of an administrative form.
In 2010, Morris Park Congregation of Jehovah’s Witnesses purchased a property for $282,500 with the intention of constructing a Kingdom Hall, the opinion said. As part of the recording of the deed, a realty transfer tax certification was filed, indicating that the address of Morris Park was the prior address of a church elder and Morris Park never updated the address with Philadelphia’s Department of Revenue, the opinion said.
Following the purchase of the property, Morris Park cleaned the property but left the property vacant, occupied only by a garage and a trailer surrounded by a chain link fence, the opinion said.
By 2013, Morris Park owed almost $10,000 in real estate tax arrearage. Philadelphia thereafter initiated tax foreclosure proceedings against Morris Park as to the property. In early 2014, the property was subjected to a tax sale and the property was sold to a third-party bidder.
In addition to seeking to redeem the property under the act, Morris Park filed a petition attempting to set aside the tax sale due to an alleged inadequate proof of service of the city’s petition and rule.
In the petition, the property owner, among other things, argued that Philadelphia failed to adequately establish proof of service of the city’s petition and rule by way of posting of the property.
At the trial court level, Morris Park’s petition to set aside the tax sale was denied because the trial court judge found that the service requirements under the act had been satisfied.
The property owner then appealed the trial court’s ruling to the Commonwealth Court.
In a memorandum opinion written by Colins, the Commonwealth Court disagreed with the trial court judge and instead ordered that the tax sale be set aside due to inadequate proof of service of the city’s petition and subsequently issued rule.
Colins first addressed whether the petition was filed by the property owner in a timely fashion.
Under Section 39.3 of the act, a petition seeking to set aside a tax sale must be filed within three months from the date that the sheriff of Philadelphia acknowledges the deed transferring the property to the successful third-party bidder.
Based upon his estimation, the property owner in Morris Park clearly filed its petition within the allotted timeframe imposed by the act.
Colins then discussed the level of scrutiny Pennsylvania courts employ on municipalities throughout the state that attempt to sell a property through tax foreclosure proceedings.
Citing to the act itself and City of Philadelphia v. Schaffer, 974 A.2d 509, 512 (Pa. Cmwlth. 2009), Colins emphasized that Section 39.2 of the act “mandates strict service requirements that the city must follow for a court to gain the jurisdiction necessary to authorize a sheriff’s sale, including service of the petition and rule to show cause why the property should not be sold by ‘posting a true and correct copy of the petition and rule on the most public part of the property.'”
Colins also pointed out that “strict compliance with the service mandates of the [act] protects the procedural due process rights of all parties involved by guaranteeing that they receive notice and an opportunity to be heard and protects an owner against deprivation of his or her property without substantive due process of law.”
Since a tax sale under the act is ”conducted under the auspices of the court,” Colins reiterated that “it is the court’s duty to conduct an independent inquiry to ensure that the [act] has been complied with, and that the due process rights guaranteed by the Pennsylvania and U.S. constitutions are adequately safeguarded.”
Colins believed that the trial court judge abused his discretion by finding that Philadelphia complied with its notice and service requirements under the act.
In the related Rule 1925(a) opinion, the trial court reasoned that, among other things, Philadelphia posted its petition and subsequently issued rule upon the most prominent part of the property and, thus, satisfied the notice and service requirements under the act.
Colins was particularly dismayed with the information contained within the affidavit of service filed with the trial court by the sheriff of Philadelphia. In particular, Colins noted that the affidavit “does not include the date, time, or place of posting or any other information concerning the property or its posting.” Furthermore, Colins highlighted that the record did not contain any testimony from the representative from the sheriff of Philadelphia who so posted the property with the city’s petition and the rule.
Colins examined the origins and application of the presumption of regularity to affidavits of service by way of the Commonwealth Court’s recent ruling in U.S. National Bank Association v. United Hands Community Land Trust, 129 A.3d 627 (Pa. Cmwlth. 2015).
In Pennsylvania, “the presumption of regularity establishes prima facie evidence that a public official acts regularly in accordance with his or her official duties until evidence to the contrary appears.”
Late last year, in U.S. National Bank Association, the Commonwealth Court held that the presumption of regularity did not apply to the acts of private process servers and, therefore, the testimony of the process server concerning his usual manner of posting, rather than his specific posting of the property at issue, was insufficient to demonstrate compliance with his statutory mandate.
Colins delved into whether the presumption of regularity should continue to apply for a public official in tax sale proceedings such that a filing of an affidavit of posting establishes that the actions disclosed therein were in fact taken.
Colins ultimately concluded that, while it could be argued that the filing of the affidavit of service by the sheriff of Philadelphia under the presumption of regularity establishes prima facie evidence that the property was, indeed, posted, under Section 39.2 of the act, evidence of mere posting is insufficient.
Rather, according to Colins, the act requires posting of “the petition and rule on the most public part of the property.”
Since the affidavit of service did not even include such basic information as the date and time of posting, Colins refused to apply the presumption of regularity to the sheriff of Philadelphia, despite being a public official. Moreover, Colins mentioned that Philadelphia, at the hearing on Morris Park’s petition, did not even present the officer who posted the property in order to establish where the city’s petition and rule were so posted.
Colins stated that Philadelphia’s failure to perfect service by first-class and certified mail made compliance with the posting mandate under the act all the more important.
In Morris Park, it was undisputed that the mail was marked unclaimed and undeliverable, since the property owner’s mailing address for the property was not valid at the time of the tax foreclosure proceedings.
Although Colins reiterated that Philadelphia had no duty to locate the whereabouts of a property owner even for a vacant property where the mailing address of the property owner is clearly deficient, he held that “proper posting is not only an additional reasonable step that should be taken to adequately safeguard constitutional due process once a municipal authority has knowledge that service through the mail was ineffective, but a basic and longstanding statutory obligation.”
The Commonwealth Court’s ruling in Morris Park could possibly cause the way petitions attempting to set aside tax sales are heard in Philadelphia if the sheriff does not change the way it completes the affidavit of service related to the posting on the property of the city’s petition and subsequently issued rule.
It is clear now that such an affidavit of service must specifically set forth that the posting is being made on the most public portion of the property and include such basic information as the time and date of the posting.
If the sheriff fails to do so, the city, at the hearing on a petition attempting to set aside the tax sale, should obtain the testimony of the officer who posted the city’s petition and subsequently issued rule onto the property to confirm that the posting took place in accordance with the act.
Reprinted with permission from the April 12, 2016 edition of The Legal Intelligencer © 2016 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382, firstname.lastname@example.org or visit www.almreprints.com.