Curtis Bldg. Co., Inc. v. Tunstall

• Decision Date: 12 August 1975
• Citation: 21 Pa.Cmwlth. 81,343 A.2d 389
• Parties: CURTIS BUILDING CO., INC., Appellant, v. Joseph L. TUNSTALL, Jr., and Mary E. Tunstall, Appellees.
• Court: Pennsylvania Commonwealth Court

343 A.2d 389

21 Pa.Cmwlth. 81

CURTIS BUILDING CO., INC., Appellant, v. Joseph L. TUNSTALL, Jr., and Mary E. Tunstall, Appellees.

Commonwealth Court of Pennsylvania.

August 12, 1975

Argued June 2, 1975.

Alfred O. Breinig, Jr., Jenkintown, for appellant.

William E. Mowatt, Mowatt, McErlean, Pinto, Theodore & Rubin, Media for appellees.

Before BOWMAN, President Judge, and CRUMLISH, Jr., KRAMER WILKINSON, MENCER, ROGERS and BLATT, JJ.

MENCER Judge.

This appeal by Curtis Building Co., Inc. (Curtis) is from an order of the Court of Common Pleas of Delaware County dismissing Curtis's action to quiet title to and obtain possession of certain lands purchased through a tax sale for delinquent taxes.

Joseph L Tunstall, Jr., and Mary E. Tunstall, appellees, purchased the premises in question, their current residence, in 1950. The property's estimated current value is.$23,500, subject to a $4,000 mortgage. Evidence was introduced establishing the full payment of taxes for the years of 1961, 1962, 1963, 1964, 1965, 1967, 1968, 1969, 1970, and 1971 by the mortgagor, Havertown Savings and Loan Association, and its successor, Penn Federal Savings and Loan Association (Penn Federal). A representative of Penn Federal was not able to explain its failure to pay the 1966 taxes, although he did admit to the normal escrowing of appellees' funds for the purpose of such payment. On October 28, 1968, Curtis purchased the property at a treasurer's tax sale. The consideration was $424.

At the hearing before the lower court, Curtis presented as its only evidence the unrecorded treasurer's deed of October 28, 1968. In addition to the testimony of the Penn Federal witness, appellees' only evidence was the testimony of Mr. Tunstall concerning his not having received any statutory notice. No other evidence or testimony was presented by either side.

We are therefore called upon to decide the narrow question of compliance with statutory notice to appellees and the necessarily interdependent issue of where, at trial, the burden of proof rests in an action to quiet the title to land purchased at a treasurer's tax sale. After carefully reading the very limited record before us, we are compelled to reverse.

Setting the stage for our decision is Section 602 of the Real Estate Tax Sale Law, Act of July 7, 1947, P.L. 1368, As amended, 72 P.S. § 5860.602, which, at the time of the tax sale, provided in pertinent part:

'(N)otice of the sale shall also be given by the bureau, at least ten (10) days before the date of the sale, by United States registered mail, personal addressee only, return receipt requested, postage prepaid, to each owner as defined by this act and by posting on the property.

'No sale shall be defeated and no title to property sold shall be invalidated because of proof that mail notice as herein required was not received by the owner, provided such notice was given as prescribed by this section.'

It is well settled that tax sale notice requirements must be strictly followed to protect against the deprivation of private property without due process of law. Wheatcroft v. Schmid, 8 Pa.Cmwlth. 1, 301 A.2d 377 (1973).

However, our Supreme Court, in Hughes v. Chaplin, 389 Pa. 93, 95, 132 A.2d 200, 202 (1957), has affirmed the principle that '(a)s declared in Beacom v. Robison, 157 Pa.Super. 515, 521, 43 A.2d 640, 643, '. . . a prima facie presumption of the regularity of the acts of public officers exists until the contrary appears. Such a presumption is a procedural expedient. Watkins v. Prudential Insurance Co., 315 Pa. 497, 173 A. 644, 95 A.L.R. 869. In tax sales it is particularly suitable.' Thus plaintiff had made out a prima facie case to sustain her title by producing the county treasurer's and commissioners' deeds. See Tremont Township School District Appeal, 366 Pa. 404, 409, 77 A.2d 403.'

As we previously noted, Curtis's sole evidence before the lower court consisted of the treasurer's deed. Thus, like the...