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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
IN RE: JUDICIAL SALE, TAX CLAIM :
BUREAU OF NORTHAMPTON
:
COUNTY, EASTON, PA, HELD
:
DECEMBER 19, 1996
:
:
PROPERTY LOCTED AT 36 S. 6TH
:
No. 1015 C.D. 1998
STREET, EASTON, PA DESIGNATED :
AS MAP L9SE2A BLOCK 20 LOT NO. :
Argued: September 14, 1998
17
:
:
NORTHAMPTON COUNTY TAX
:
CLAIM BUREAU,
:
:
Appellant
:
BEFORE:
HONORABLE JOSEPH T. DOYLE, Judge
HONORABLE DAN PELLEGRINI, Judge
HONORABLE SAMUEL L. RODGERS, Senior Judge
OPINION BY JUDGE DOYLE
FILED: November 19, 1998
The Tax Claim Bureau of Northampton County (Bureau) appeals from an
order of the Court of Common Pleas of Northampton County which ordered the
Bureau to refund $10,000, which was the amount of the bid paid to the Bureau for
property at a judicial sale which was later declared void.
On December 19, 1996, a judicial sale took place at which property owned
by Steven Rivera and Curtis C. Klinger, Jr., and located at 36 S. 6th Street in
Easton, Pennsylvania, was sold for delinquent taxes. Joseph and Eile McCloskey
purchased the property for the sum of $10,000. In return, they received a deed

issued by the Bureau on April 16, 1997, which the McCloskeys subsequently
recorded with the Recorder of Deeds in Northampton County in Deed Book
Volume 1997-1, Page 039407. Thereafter the McCloskeys occupied the property
and made improvements to it in the amount of $9,685.44.
On May 22, 1997, Rivera and Klinger filed objections and exceptions to the
December 19, 1996 judicial sale in the Court of Common Pleas, asserting a lack of
proper notice to them of the sale. Phillipsburg National Bank and Trust Company,
a lienholder of the property subsequently filed a similar petition. Specifically,
Phillipsburg National Bank sought to set aside the sale on the grounds that, as a
lienholder, it was entitled to notice of the sale under Section 602 of the Real Estate
Tax Sale Law1 (Law), which it did not receive. Neither the Bureau nor the
McCloskeys filed an answer to the petitions, and, on August 8, 1997, the Court
entered an order declaring the December 19, 1996 judicial sale void. Following
the December 19, 1996 judicial sale, but prior to Common Pleas declaring the sale
to be null and void, the Bureau made the following distributions from the $10,000
bid price: (1) $712.20 was paid to the County of Northampton; (2) $1,360.23 was
paid to the City of Easton; (3) $2,970.50 was paid to the Easton Area School
District; (4) $560 went for costs; (5) $15 went to the auctioneer; (6) $26.50 to the
Recorder of Deeds; and (7) $584.04 was paid as realty transfer tax. Therefore,
from the original $10,000 bid price, the Bureau had $3,771.53 remaining.

1 Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. §5860.602.
2

On September 23, 1997, the McCloskeys filed a petition in the Court of
Common Pleas seeking to compel the Bureau to refund to them the $10,000 they
bid and paid at the tax sale. In addition, the McCloskeys also sought to have
Rivera and Klinger pay the $10,000 bid price to the Bureau and further requested
an order compelling Rivera and Klinger to reimburse them for the improvements
that they had made to the property while they had occupied it based on the theory
of unjust enrichment.2
On March 13, 1998, Common Pleas issued an order requiring the Bureau to
return the McCloskeys' $10,000 bid price. However, Common Pleas denied all
other relief, and this appeal by the Bureau only followed. No issue is presented in
this appeal for recovery of the $9,685.44 expended for improvements to the
property on grounds of unjust enrichment.
On appeal,3 the Bureau presents three arguments: (1) the McCloskeys'
petition was barred by the doctrines of caveat emptor and governmental immunity;

2 The Superior Court set out the elements that a party must demonstrate for unjust
enrichment in Wolf v. Wolf, 514 A.2d 901 (Pa. Super. 1986), overruled on other grounds, Van
Buskirk v. Van Buskirk, 527 Pa. 218, 590 A.2d 4 (1991). The elements are:
[(1)] benefits conferred on defendant by plaintiff, [(2)] appreciation of such
benefits by defendant, and [(3)] acceptance and retention of such benefits under
such circumstances that it would be inequitable for defendant to retain the benefit
without payment for value.
Id. at 905-06.
3 Our standard of review in a tax sale case is limited to determining whether the Lower
Court abused its discretion, rendered a decision without supporting evidence or clearly erred as a
(Footnote continued on next page...)
3

(2) Common Pleas abused its discretion by ordering the Bureau to refund monies
that had already been dispersed because the sale had been confirmed by the Court;
and (3) the McCloskeys' petition was barred by the doctrines of res judicata and
collateral estoppel.
The Bureau first asserts that the McCloskeys' petition is barred by the
doctrines of caveat emptor and governmental immunity. Section 1 of the Act of
April 21, 1856, P.L. 477, as amended, 72 P.S. §5931 provides as follows:
In all public sales of land hereafter made by the treasurer or
commissioners of the several counties of this [C]ommonwealth, in
pursuance of the laws of this [C]ommonwealth the rule of caveat
emptor shall apply, except in cases of double assessment, or where the
taxes on which the sale is made shall have been previously paid, or
where the lands do not lie within the county; and neither said treasurer
nor commissioners shall be required to refund the purchase money,
costs or taxes paid upon any tract or tracts of land so sold as
aforesaid.
72 P.S. §5931 (emphasis added). This Court has concluded that the doctrine of
caveat emptor, or "let the buyer beware," applies to judicial sales. Frey v. Beaver
County Tax Claim Bureau, 687 A.2d 57 (Pa. Cmwlth. 1996).4 Based upon this

(continued...)
matter of law. Casaday v. Clearfield County Tax Claim Bureau, 627 A.2d 257 (Pa. Cmwlth.
1993).
4 In Frey, a purchaser of property at a tax sale sought to have his purchase price refunded
after he learned that the property was adjacent to property which had been condemned and
closed due to a defective on-site sewage system. This Court affirmed the decision of the trial
court which had denied Frey relief, and we noted that, although a private land owner has the duty
to disclose material defects to prospective buyers, a similar duty was not imposed on Tax Claim
Bureaus under the Law. Therefore, the doctrine of caveat emptor applied.
4

doctrine, the Bureau argues that the McCloskeys were not entitled to the refund of
their bid price. Specifically, the Bureau argues that, under caveat emptor, the
McCloskeys took certain risks in attempting to purchase the property at a judicial
sale, one of which, according to the Bureau, was the risk that the sale would
subsequently be set aside. We disagree. Although the law is clear that the doctrine
applies to a purchaser at a judicial sale, the prerequisite for the maxim "let the
buyer beware" is that there is, in fact, a buyer. In the present case, Common Pleas'
August 8, 1997 order setting aside the judicial sale declared the sale to be null and
void. It is, of course, an elementary principle of law that when an event or act is
voided, the event or act is treated as if it never occurred or existed. Blackwell v.
State Ethics Commission, 569 A.2d 378 (Pa. Cmwlth. 1990), aff'd, 527 Pa. 172,
589 A.2d 1094 (1991). Therefore, because the sale never existed as the result of
Common Pleas' order, there was no buyer for the property because there was no
sale. Thus, the doctrine of caveat emptor cannot apply because the McCloskeys
never purchased the property.
Likewise, the doctrine of governmental immunity does not apply in the
present case. The Bureau asserts that under our Supreme Court's holding in In re
Upset Sale (Skibo Property), 522 Pa. 230, 560 A.2d 1388 (1989), it is immune
from the McCloskeys' petition. In Skibo, the Court concluded that, although a
disappointed purchaser was entitled to any interest which accrued on the bid price
while the Tax Claim Unit held the funds, the purchaser could not sue the Tax
Claim Unit for interest on the money that the purchaser borrowed to purchase the
property because such a suit is barred by governmental immunity. In its analysis,
however, the Supreme Court did not address the issue of the return of the bid price
5

to the disappointed purchaser. As this Court noted in its opinion in Skibo,5 the
Tax Claim Unit had already returned the purchase money to the disappointed
purchaser, and, therefore, those funds were not in dispute.
Moreover, we do not agree with the Bureau that Skibo stands for the
proposition that a disappointed taxpayer is only entitled to the interest which
accrues on the monies paid for property at a judicial sale; rather we read Skibo to
provide for a full refund of the purchase price in addition to accrued interest on
that sum. See McCulloch et al. v. District of Columbia, 685 A.2d 399 (D.C. 1996).
Accordingly, the Bureau's reliance on Skibo as support for its decision to keep the
McCloskeys' bid price is misplaced, and our research has revealed no other case
which would support the Bureau's argument.
Next, the Bureau argues that Common Pleas abused its discretion by
requiring it to refund the McCloskeys' money where the tax sale had previously
been confirmed, and the County had dispersed the money. At the outset, we note
that the effect of confirmation is contained in Section 607(g) of the Law, 72 P.S.
§5860.607(g), which provides in pertinent part as follows:
If no objections or exceptions are filed or if objections or
exceptions are finally overruled and the sale confirmed absolutely, . . .
the proceedings of the bureau with respect to such sale, shall not
thereafter be inquired into judicially in equity or by civil proceedings
by the person in whose name such property was sold, by a grantee or
assignee, by any lien creditor or by any other person, except with
respect to the giving of notice under the act, to the time of holding
the sale, or to the time of petitioning the court for an order of sale.

5 533 A.2d 491 (Pa. Cmwlth. 1987), rev'd, 522 Pa. 230, 560 A.2d 1388 (1989).
6

72 P.S. §5860.607(g) (emphasis added). As noted above, the fact that Common
Pleas had confirmed the judicial sale did not prevent it from later declaring the sale
void because of a lack of proper notice, because that precise scenario is provided
for in Section 607(g). Accordingly, the fact that the sale was confirmed neither
affected the authority of Common Pleas to subsequently set the sale aside because
the Law was violated, nor did it prohibit Common Pleas from subsequently
entertaining the McCloskeys' petition for return of their bid price.
Finally, the Bureau argues that the McCloskeys' petition was barred by the
doctrines of collateral estoppel and res judicata. Collateral estoppel or issue
preclusion forecloses relitigation in a subsequent action of a necessary issue that
was actually litigated in a prior proceeding. Lamborn v. Workmen's Compensation
Appeal Board (Armoroso Baking), 656 A.2d 593 (Pa. Cmwlth. 1995).
Accordingly, collateral estoppel will apply if:
1) the issue decided in the prior adjudication was identical with the
one presented in the later action, 2) there was a final judgment on the
merits, 3) the party against whom the plea is asserted was a party ... to
the prior adjudication, and 4) the party against whom it is asserted has
had a full and fair opportunity to litigate the issue in question in a
prior action.
Safeguard Mutual Insurance Co. v. Williams, 463 Pa. 567, 574-75, 345 A.2d 664,
668 (1975) (citations omitted). Likewise, the doctrine of claim preclusion, or res
judicata, operates to preclude a claim only where there is an identity of the
following:
(1) the subject matter, (2) the cause of action, (3) the parties, and (4)
the quality or capacity of the parties suing or being sued.
7

Glade Park East Home Owners Assoc. v. Public Utility Commission, 628 A.2d
468, 474 (Pa. Cmwlth. 1993). Based upon the above, the Bureau argues that the
McCloskeys should have sought relief during the pendency of the matter before
Common Pleas which resulted in the determination to set aside the judicial sale;
otherwise, the issue was barred under one of the preclusionary doctrines. We do
not agree. It is clear that the McCloskeys were not parties to the proceedings to
determine whether proper notice had been provided prior to the judicial sale.
Although the law is clear that a successful bidder has standing to file exceptions to
an order setting aside a judicial sale, M.J.M. Financial Services, Inc. v. Burgess by
Dignazio, 533 A.2d 1092 (Pa. Cmwlth. 1987), there is no requirement in the Law
or case law that a successful purchaser must intervene in a petition to set aside a
judicial sale in order to claim the purchase price paid. Therefore, the identity of
parties, which is an essential element required for both doctrines to be applicable,
is absent in the present case.
Moreover, there was a significant difference between the two proceedings.
The inquiry in the proceedings to set aside the sale concentrated solely on whether
or not the Bureau had complied with the notice requirements under the Law. But,
the McCloskeys' petition focused on their entitlement to a refund of the bid price.
Therefore, for purposes of collateral estoppel, the issue litigated in the prior
proceeding, i.e., whether the Bureau gave proper notice of the sale, was not an
issue litigated in the subsequent determination of whether the Bureau should
refund the McCloskeys' bid price. Likewise, for res judicata purposes, the subject
matter of the two proceedings was vastly different. The first hearing determined
whether the Law had been complied with as to notice; the second hearing
8

determined whether the successful bidders were entitled to receive their bid price
back from the Bureau. Accordingly, because the two proceedings involved
factually and legally distinct issues, neither collateral estoppel nor res judicata
applies to the present case, and we reject the Bureau's argument in this respect.
Order affirmed.
__________________________
JOSEPH T. DOYLE, Judge
9