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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: 1999 Upset Sale of Real Estate, :
Montgomery County Tax Claim Bureau :
for 1997 Delinquent Taxes,
:
Tax Parcel 59-00-15922-00-3
:

:
Appeal of: Irvin Povlow, Michael
:
Candido, Michael Singer and
: No. 1001 C.D. 2002
Homeowner's Concept, Inc.
: Argued: November 4, 2002
BEFORE: HONORABLE JAMES GARDNER COLINS, President Judge

HONORABLE RENÉE L. COHN, Judge
HONORABLE
CHARLES P. MIRARCHI, JR., Senior Judge
OPINION BY PRESIDENT JUDGE COLINS FILED: November 22, 2002

Irvin Povlow, Michael Candido, Michael Singer, and Homeowner's
Concept, Inc. (Buyers) appeal the order of the Court of Common Pleas of
Montgomery County sustaining the objections of William and Arleen Kupper
(Taxpayers) to the tax upset sale of the real property located at 4205 Shoemaker
Road, Huntingdon Valley for delinquent taxes and voiding the sale.

In their objections to the sale, the Taxpayers averred the following.
The Taxpayers are husband and wife and own the property as tenants by the
entireties. William Kupper resides at the property; Arleen Kupper resides in
Weehawken, New Jersey since January 1990. The Taxpayers alleged that records
at the Tax Claim Bureau of Montgomery County contained no proof that the tax
sale was published in any newspaper or legal journal, no signed receipts to
establish that either of the Taxpayers received notice of the sale, no proof of first-

class mailing of notices to either of the Taxpayers. They averred that the Bureau
failed to comply with the statutory requirements and requested that the sale be set
aside. The Buyers intervened and filed an answer.

The evidence of record is as follows. Deputy Sheriff William
Reinhardt testified that the property was posted and that personal service was
attempted at the Shoemaker Road address on five occasions without success.
Sharon Hetrick of the tax claim bureau produced proof of attempts to serve notices
of the tax sale by certified mail at the Shoemaker Road address:

1. A notice of return and claim mailed on April 17, 1998 addressed to
William and Arleen Kupper, returned as unclaimed;

2. A notice of return and claim dated April 1, 1999 addressed to
William and Arleen Kupper with no attachment indicating whether it was delivered
or not;

3. A notice of public tax sale dated May 28, 1999 addressed to Arleen
Kupper, returned unclaimed;

4. A notice of public tax sale dated May 28, 1999 addressed to
William Kupper, returned unclaimed.
The bureau's file contains a notice of return and claim dated October 17, 1998 and
a notice of public tax sale dated July 8, 1999 that were supposedly posted on the
property; neither bore the name of the person who posted it. Personal service of
the notice of public tax sale dated July 8, 1999 was unsuccessful. Ms. Hetrick
testified that separate second notices of public tax sale dated August 27, 1999 were
mailed "by regular mail" to William Kupper and to Arleen Kupper; however, the
notices themselves state that they were sent certified mail and bear no return
2

receipts. Letters sent by certified mail to William Kupper and to Arleen Kupper at
the Shoemaker Road address after the sale were returned as unclaimed.

On September 7, 1999, the tax claim bureau filed with the court of
common pleas a petition to waive personal service on the property owners for
cause shown. The petition represents that the sheriff was unable to make personal
service because the owner-occupants are deceased, do not answer the door, do not
reside in the property, or their whereabouts are unknown. The trial court granted
the waiver in an order that references a tax sale date of September 13, 1999 in its
first paragraph but decrees in its second paragraph that the properties may be sold
at the tax sale scheduled for September 22, 1998 even though the owner-occupants
were not personally served with notice.

After considering the evidence, the trial court set aside the sale. The
trial court concluded that the tax claim bureau failed to prove compliance with the
notice provisions. The Buyers filed exceptions, which the trial court overruled.
On appeal to this Court,1 the Buyers argue that the trial court erred when it
concluded that the tax claim bureau failed to provide proper notice of the tax sale
and that the court improperly allocated the burden of proof.

Although a presumption of regularity attaches to tax sales, a property
owner overcomes the presumption whenever he or she states a prima facie
challenge to the sale based on the agency's compliance with statutory tax sale
requirements. Michener v. Montgomery County Tax Claim Bureau, 671 A.2d 285
(Pa. Cmwlth. 1996). Because of the fundamental importance of the due process

1 Our review is limited to determining whether the trial court abused its discretion, clearly erred
as a matter of law, or rendered a decision unsupported by the evidence. Hunter v. Washington
County Tax Bureau, 729 A.2d 142 (Pa. Cmwlth. 1999).
3

considerations that arise when the government subjects a citizen's property to
forfeiture for nonpayment of taxes, the agency that has sold the property bears the
burden of proving that it complied with statutory notice requirements when
property owner mounts such a prima facie challenge. Id.

Section 602 of the Real Estate Tax Sale Law (Tax Sale Law),2 72 P.S.
§5860.602, imposes a series of notification requirements--by publication, certified
mail, and posting--before a county tax claim bureau can sell real property for
delinquent taxes. Before a tax sale can be conducted or confirmed, Section
607.1(a) of the Tax Sale Law,3 72 P.S. §5860.607a(a), requires additional
notification efforts when the mailed notification is returned without the required
personal receipt or under circumstances that raise doubt as to the actual receipt of
notification by the named addressee. The Law's notice provisions are to be strictly
construed, and the tax sale is void if any of the required types of notice is
defective. Ban v. Tax Claim Bureau of Washington County, 698 A.2d 1386 (Pa.
Cmwlth. 1997). At issue in this case are the personal service and mailing
requirements and the sufficiency of the notification efforts.4

Waiver of Personal Service

Section 601(a)(3) of the Tax Sale Law provides that no owner-
occupied property may be sold unless the tax claim bureau has given the owner
notice of the sale by personal service by the sheriff. 72 P.S. §5860.601(a)(3). If

2 Act of July 7, 1947, P.L. 1368, as amended.
3 Added by Section 30 of the Act of July 3, 1986, P.L. 351.
4 The trial judge's opinion, filed pursuant to Pa. R.A.P. 1925(b), does not address the tax claim
bureau's compliance with the law's publication requirements. We note that the record contains
no evidence that the tax claim bureau properly published notice of the tax sale.
4

personal service cannot be made within 25 days of the bureau's request to the
sheriff, the bureau may petition the court of common pleas to waive the
requirement for good cause shown. Id.

In this case, after five attempts to make personal service on the
Taxpayers, the bureau petitioned the trial court to waive the personal service
requirement. By order dated September 8, 1999, the court ordered that the
property "may be sold at the Tax Sale scheduled for September 22, 1998."
Subsequently, after reviewing the record, the trial court ruled that tax sale should
be invalidated on the alternative ground that the bureau's petition contained
inaccurate information.

The appellants argue that the bureau's petition for waiver of the
personal service requirement was not fatally defective because of errors in the sale
date and years for which taxes were owing. The petition referred to the tax sale
date in one instance as "September 13nd" and in another instance as "September
13, 1999." It further argues that the typographical errors were inconsequential
because neither the petition nor the order granting the waiver was served on the
Taxpayers.

Although we do not agree that the defective petition in this case is
sufficient ground to invalidate the tax sale, the errors in the petition are
representative of the careless manner in which the tax claim bureau pursued the
sale of the property in question. The errors and inconsistencies involve some of
the most salient facts upon which the petition was based: the date of the tax sale
and the tax years for which taxes were delinquent. Furthermore, the bureau should
have discovered the erroneous date in the court's order granting waiver and sought
clarification or amendment.
5

Notification Requirements

Pursuant to Section 602(e) of the Tax Sale Law, a county tax sale
bureau, at least 30 days before the date of a tax sale, must serve notice of the sale
on each owner by United States certified mail, restricted delivery, return receipt
requested, postage prepaid. 72 P.S. §5860.602(e)(1). If return receipt is not
received from each owner, then at least 10 days before the sale, notice must be
given to each owner who failed to acknowledge the first notice by first class mail,
proof of mailing, at each owner's last known address. 72 P.S. §5860.602(e)(2).
Separate notice must be sent to each owner even when the property is owned by
husband and wife as tenants by the entireties. In Re Upset Sale Held 11/10/97, 784
A.2d 834 (Pa. Cmwlth. 2001), petition for allowance of appeal denied sub nom. In
re Baklycki, ___ Pa. ___, 800 A.2d 936 (2002).

The undisputed facts in this matter are that in 1990 Arleen Kupper
moved to Weehawken, New Jersey. All of the certified mail notifications were
addressed to William and Arleen Kupper at the Shoemaker Road address, and all
were returned as unclaimed. The tax claim bureau failed to comply with the
statutory requirement to send separate notification by certified mail to each of the
named owners. The bureau also failed to send the second notices by first class
mail to each owner, with proof of mailing.

Because the evidence in this case establishes that certified mail
notifications were returned without the required receipt, that personal service was
not made on any owner, and that none of the notices were acknowledged in any
respect, the tax claim bureau was statutorily obligated to make additional
notification efforts. Section 607.1(a) of the Tax Sale Law states,

6

(a) When any notification of a pending tax sale or a tax
sale subject to court confirmation is required to be mailed
to any owner . . . and such mailed notification is either
returned without the required receipted personal
signature of the addressee or under other circumstances
raising a significant doubt as to the actual receipt of such
notification by the named addressee or is not returned or
acknowledged at all, then, before the tax sale can be
conducted or confirmed, the bureau must exercise
reasonable efforts to discover the whereabouts of such
person or entity and notify him. The bureau's efforts
shall include, but not necessarily be restricted to, a search
of current telephone directories for the county and of the
dockets and indices of the county tax assessment offices,
recorder of deeds office and prothonotary's office, as well
as contacts made to any apparent alternate address or
telephone number which may have been written on or in
the file pertinent to such property. When such reasonable
efforts have been exhausted, regardless of whether or not
the notification efforts have been successful, a notation
shall be placed in the property file describing the efforts
made and the results thereof, and the property may be
rescheduled for sale or the sale may be confirmed . . . .
(b) The notification efforts required by subsection (a)
shall be in addition to any other notice requirements
imposed by this act.

72 P.S. §5860.607a (emphasis added). The record in this case contains no
evidence that the tax claim bureau pursued any of the required additional
notification efforts. As we have stressed in the past, Section 607.1(a) demonstrates
our General Assembly's awareness of the evolving due process standard for notice
that requires state and local governments to make real efforts to locate and notify
the holders of interests in property. A tax claim bureau may not ignore the
mandatory additional notification requirements and proceed with a sale when
mailed notification is unsuccessful or when other circumstances raise doubt as to
its actual receipt.
7

Publication Requirements

Although the trial court did not address the tax claim bureau's
compliance with the statutory advertising requirements, the Buyers argue that those
requirements were met and assert that it obtained and submitted duplicate
affidavits of publication from the Pottstown Mercury and Montgomery County
Law Reporter and copies of the notices from the Norristown Times-Herald. On
this issue, we must agree with the Taxpayers that the evidence was not presented
before the trial court, and the tax claim bureau produced no evidence on this issue.
On the record before us, we would have to conclude that on this requirement also,
the bureau failed to meet its burden.

Having concluded that the trial court did not err when it concluded
that the tax claim bureau failed to comply with the statutory notice requirements,
the burden never shifted to the Taxpayers to produce contradictory evidence or to
otherwise show cause why the tax sale should be overturned; therefore we need not
address the Buyers' argument that the Taxpayers failed to produce any
contradictory evidence.

Finally, we reject the Buyers' argument that a court might infer that
the Taxpayers had actual notice of the tax sale based on their discovery of the sale
more than 30 days thereafter. We cannot accept the appellants' bare assertion that
the Taxpayers probably received the second notices and saw the posted notices and
therefore knew of the sale weeks before it took place. Although evidence of actual
notice might mitigate the tax claim bureau's failure to comply with the statutory
notice requirements, the appellants presented no evidence to support such a
conclusion.
8

Accordingly, the order of the court of common pleas is affirmed.

JAMES GARDNER COLINS, President Judge
9