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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
James E. Donofrio,

:

Appellant

:

:

v.

: No. 1061 C.D. 2002

: Submitted: November 4, 2002
Northampton County Tax Claim
:
Bureau and Charles Peterson,
:
Anthony Malinowski, Deborah Williams :
and Irvin Povlow

:
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge
HONORABLE
MARY
HANNAH LEAVITT, Judge

HONORABLE JOSEPH F. McCLOSKEY, Senior Judge
OPINION
BY SENIOR JUDGE McCLOSKEY

FILED: December 4, 2002

James E. Donofrio (Donofrio) appeals from an order of the Court of
Common Pleas of Northampton County (trial court), denying and dismissing his
petition to set aside tax upset sale. We affirm.

Donofrio was a resident of New Jersey. Donofrio owned property
located at 325 Vine Street in the city of Bethlehem, Northampton County,
Pennsylvania. The property has improvements thereon consisting of a single-
family dwelling. Donofrio failed to pay his 1999 real estate taxes, totaling
approximately $2,649.75. The Northampton County Tax Claim Bureau (the
Bureau) sent Donofrio notice in July of 2001 of its intent to sell this property at a
public tax sale. The Bureau also posted a notice of tax sale on the property. The
property was thereafter sold to Charles Peterson, Anthony Malinowski, Deborah

Williams and Irvin Povlow (Purchasers) at a September 10, 2001, tax sale.1 The
Northampton County Department of Fiscal Affairs thereafter sent Donofrio notice
of said sale and his right to file objections/exceptions.

Donofrio filed such objections/exceptions in the form of a petition to
set aside tax upset sale. In this petition, Donofrio noted that he did not, nor had he
ever, resided at the property. Donofrio argued that the notice he received, as well
as the notice posted on the property, was insufficient under the Real Estate Tax
Sale Law (Law), Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. §5860.101
5860-803. More specifically, Donofrio argued that the warnings contained on said
notices were not in at least 10-point type as required by the Law.2

The case proceeded with a hearing before the trial court. All of the
aforementioned notices were admitted into evidence by agreement of the parties.
Donofrio acknowledged receipt of the notice of unpaid taxes, the notice of public
tax sale and the notice that the property had been sold. Donofrio, however, never
saw the notice purported to be posted on the property. Both the Bureau and a
representative of the company that printed the notices acknowledged that the
warning language contained in the notice sent directly to Donofrio was less than
the minimum requirement of 10-point type, i.e., the warning language was actually
9-point type.

Nevertheless, the trial court issued an order denying and dismissing
Donofrio's petition. In a subsequent decision, the trial court indicated that the

1 Purchasers actually paid $5,792.63 for the property.
2 Sections 602(g) of the Law provides that "[a]ll notices required by this section" shall
contain an appropriate warning "in at least 10-point type...." 72 P.S. §5860.602(g).

2

warning language was not in 10-point type. However, the trial court found that
there was no dispute that Donofrio was aware of and had actual notice of the
impending upset tax sale. As this was the case, the trial court indicated that the
formal requirements of notice did not have to be met. Donofrio then filed an
appeal with this Court.
On
appeal,3 Donofrio argues that the trial court erred as a matter of
law in denying and dismissing his petition to set aside tax upset sale based upon
the insufficiency of the type contained on the aforementioned notices. We
disagree.

In a tax sale case such as this, the burden of proving compliance with
statutory notice provisions of the Law rests with the tax bureau. Rinier v. Tax
Claim Bureau of Delaware County, 606 A.2d 635 (Pa. Cmwlth. 1992). Section
602 of the Tax Sale Law sets forth three methods of notice. These notice
requirements consist of publication at least thirty (30) days prior to sale,
notification by certified/ first-class mail, and posting of the property at least ten
(10) days prior to the sale, all of which are required for a valid tax sale. Matter of
Tax Sales by the Tax Claim Bureau of Dauphin County, 651 A.2d 1157 (Pa.
Cmwlth. 1994), petition for allowance of appeal denied, 544 Pa. 650, 664 A.2d 978
(1995).

Moreover, it is well established that notice provisions are to be strictly
construed, and that strict compliance with such provisions is necessary to guard
against deprivation of property without due process, and if any one is defective, the

3 Our scope of review in tax sale cases is limited to determining whether the trial court
abused its discretion, erred as a matter of law or rendered a decision with a lack of supporting
evidence. Ban v. Tax Claim Bureau of Washington County, 698 A.2d 1386 (Pa. Cmwlth. 1997).

3

sale is void. Rinier. Nevertheless, we have previously held that the formal
requirements of Section 602 need not be met when a taxpayer has actual notice of a
tax delinquency and scheduled sale. See Sabbeth v. Tax Claim Bureau of Fulton
County, 714 A.2d 514 (Pa. Cmwlth. 1998), petition for allowance of appeal
denied, ___ Pa. ___, ___ A.2d ___ (No. 818 M.D. Alloc. Dkt. 1998, filed April 13,
1999); Casaday v. Clearfield County Tax Claim Bureau, 627 A.2d 257 (Pa.
Cmwlth. 1993).

In this case, at the hearing before the trial court, Donofrio admitted to
receiving a notice from the Bureau dated June 26, 2000, concerning unpaid 1999
real estate taxes on his property at 325 Vine Street in Bethlehem. Donofrio also
admitted to receiving a notice of public tax sale from the Bureau dated July 6,
2001.4 This latter notice provided that the tax sale would occur on September 10,
2001, at 2:00 p.m. at the Northampton County Government Center in Easton,
Pennsylvania. Based upon these admissions, we fail to see how the trial court
erred in finding that Donofrio had actual notice of the impending tax sale.

4 Counsel for Donofrio later stipulated that his client had received these notices.

4

Accordingly, the order of the trial court is affirmed.5

JOSEPH
F.
McCLOSKEY, Senior Judge

Judge Simpson did not participate in the decision of this case.

5 Admittedly, the Law requires that the aforementioned notices contain 10-point type.
While we in no way condone the Bureau's failure to comply with the Law, we cannot say that
the trial court erred in finding that Donofrio had sufficient actual notice to overcome the lack of
this formal requirement. Moreover, we note the testimony of the representative of the company
that prints the notices for Northampton County, i.e., Kim Hartung, that the actual difference
between 9-point type and 10-point type amounts to "about one sixty-fourth of an inch" and is
barely perceptible by the human eye. (R.R. at 23a).
5

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
James E. Donofrio,

:

Appellant

:

:

v.

: No. 1061 C.D. 2002

:
Northampton County Tax Claim Bureau :
and Charles Peterson,
:
Anthony Malinowski, Deborah Williams :
and Irvin Povlow

:

O R D E R

AND
NOW,
this
4th day of December, 2002, the order of the Court of
Common Pleas of Northampton County is hereby affirmed.

JOSEPH
F.
McCLOSKEY, Senior Judge