Rivera v. Carbon County Tax Claim Bureau

• Decision Date: 01 September 2004
• Citation: 857 A.2d 208
• Parties: John RIVERA and Esther Q. Rivera v. CARBON COUNTY TAX CLAIM BUREAU and Jason Keller, Appeal of Jason Keller.
• Court: Pennsylvania Commonwealth Court

857 A.2d 208

John RIVERA and Esther Q. Rivera v. CARBON COUNTY TAX CLAIM BUREAU and Jason Keller,

Appeal of Jason Keller.

Commonwealth Court of Pennsylvania.

Argued June 9, 2004.

Decided September 1, 2004.

Anthony Roberti, Jim Thorpe, for appellant.

Joseph J. Matika, Summit Hill, for appellees, J. Rivera and E. Rivera.

Vincent R. Garvey, Jr., Hazelton, for appellee, Carbon Cnty. Tax Claim Bureau.

BEFORE: SIMPSON, Judge, and LEAVITT, Judge, and KELLEY, Senior Judge.

OPINION BY Senior Judge KELLEY.

Jason Keller (Keller) appeals from a final order of the Court of Common Pleas of Carbon County (trial court), which granted the petition to set aside judicial sale filed by John Rivera and Esther Q. Rivera (collectively, the "Riveras") and voided the deed conveyed to Keller.

The facts of this case are as follows. On December 10, 2001, property located at Lot D1845 Wylie Circle, Towamensing Trails in Albrightsville, Carbon County, Pennsylvania (property) was sold at judicial sale for unpaid 1998 and 1999 real estate taxes. Keller was the successful bidder for the property. The Carbon County Tax Claim Bureau (Bureau) transferred title for the property to Keller.

On January 9, 2002, the Riveras filed a petition to set aside judicial sale of the property.¹ The Riveras were the owners, by last recorded deed, of the property. In the petition, the Riveras alleged that the sale of the property to Keller was invalid on the basis that the Bureau failed to satisfy the notice requirements of the Real Estate Tax Sale Law (Law).² On April 9, 2002, Keller filed a petition for value of improvements (petition for improvements) pursuant to Section 20 of the Act of April 12, 1842, P.L. 262, 72 P.S. § 5875.³

A hearing was held on October 15, 2002. Based upon the testimony and evidence presented, the trial court found that the Riveras, in the summer of 1999, without notice to the Bureau, moved from Staten Island, New York to Allentown, Pennsylvania. On September 22, 2000, the Riveras' property was exposed to an upset sale based upon their failure to pay the property taxes for 1998 and 1999.⁴ The Bureau forwarded notices of the impending upset sale to the Riveras at the Staten Island address via certified mail on or about July 11, 2000. Neither the notices nor the return receipt cards were returned. On July 19, 2000, the Bureau posted notice of the upset sale on the Riveras' property. The Bureau attempted to personally serve the Riveras with notice, but to no avail. On August 11, 2000, the Bureau advertised the upset sale in the Carbon County Law Journal.

The upset sale was held on September 22, 2000, but the property was not sold. Thereafter, the Bureau petitioned the trial court to sell the property at judicial sale, which was granted. The notices for the judicial sale were again mailed to the Riveras at the Staten Island address. These notices were returned and marked "moved, left no address and unable to forward." On November 12, 2001, Esther Rivera contacted the Carbon County Tax Collector to inform her of their new address in Allentown. On December 10, 2001, without further notice to the Riveras, the property was sold to Keller at the judicial sale for $2,467.70.

The trial court concluded that the Bureau failed to provide adequate notice to the Riveras of the judicial sale as required the Law. When the judicial sale notices were returned, it was incumbent upon the Bureau to take reasonable efforts to notify the Riveras of the impending judicial sale. The Tax Collector became aware of the Riveras' new Allentown address in November 2001, one month prior to the judicial sale. Had the Bureau simply contacted the Tax Collector, it would have been able to notify the Riveras of the judicial sale. Having failed to avail itself of the information known to the local Tax Collector, which was well within its grasp, the trial court concluded that the Bureau failed to exercise the reasonable efforts required by Section 607.1 of the Law, 72 P.S. § 5860.607a.⁵ By order dated May 28, 2003, the trial court declared the judicial sale and deed to be null and void. Keller then filed timely post-trial motions, which the trial court denied. Keller now files the instant appeal.⁶ Keller raises the following issues for our review:

1. Does this Court have jurisdiction to review the trial court's order since the trial court has not ruled on the petition for improvements?

2. Were the Riveras "aggrieved persons" with legal standing to attack the validity of the judicial sale?

3. Did the trial court have subject matter jurisdiction to grant the relief requested?

4. Did the Riveras have "implied" or "constructive" notice of judicial sale, thereby waiving alleged defective notice of sale?

First, Keller contends that this Court has jurisdiction to review the trial court's order setting aside the sale despite the fact that the petition for improvements is still pending. We agree.

This Court has appellate jurisdiction over "final orders" of the administrative agencies or courts of common pleas. Pa. R.A.P. 341; Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978). A final order is any order that: (1) disposes of all claims and of all parties; or (2) any order that is expressly defined as a final order by statute; or (3) any order entered as a final order pursuant to subdivision (c) of this rule.⁷ Pa. R.A.P. 341. The purpose of limiting appellate review to final orders is to prevent piecemeal determinations and the consequent protraction of litigation. Green Mountain Energy Company v. Pennsylvania Public Utility Commission, 812 A.2d 740 (Pa.Cmwlth.2002), petition for allowance of appeal denied, 574 Pa. 776, 833 A.2d 145 (2003).

Interlocutory and collateral orders, which by definition are not final, may become appealable under certain circumstances. An appeal from an interlocutory order may be taken as of right pursuant to Rule 311 of the Pennsylvania Rules of Appellate Procedure.⁸ Of relevance to this discussion is Rule 311(a)(2), which provides that an appeal may be taken as of right from:

An order confirming, modifying or dissolving or refusing to confirm, modify or dissolve an attachment, custodianship, receivership or similar matter affecting the possession or control of property, except for orders pursuant to Sections 3323(f) and 3505(a) of the Divorce Code, 23 Pa.C.S. §§ 3323(f) and 3505(a).

(Emphasis added).

Applying these standards to the present matter, we conclude that this Court has jurisdiction of this appeal. While the trial court's order setting aside the judicial sale would ordinarily constitute a final order, the fact that the petition for improvements is still pending with the trial court has rendered the order interlocutory.⁹ Pursuant to Pa. R.A.P. 311(a)(2), when an interlocutory order affects "the possession or control of property," the order is appealable as of right. In this case, once the trial court set aside the sale, Keller was divested of his right to possess the property. As a result, the trial court's order is appealable as of right.¹⁰

Next, Keller contends that the Riveras were divested of ownership following the upset sale and were not legal owners on the date of the judicial sale and therefore are not aggrieved persons with legal standing to attack the validity of the judicial sale. We disagree.

Section 610 of the Law, 72 P.S. § 5860.610, provides that in cases where property is listed for upset sale, but the upset price is not bid, the sale shall be continued, and the Bureau may file a petition in the court of common pleas of the county to sell the property by judicial sale under Sections 612 and 612.1¹¹ of the Law, 72 P.S. §§ 5860.612, 5860.612-1. In the petition, the Bureau must set forth:

(1) the tax claim upon which the property was exposed for sale,

(2) that neither the owner, his heirs or legal representatives or any lien creditor, his heirs, assigns or legal representatives or other person interested has caused stay of sale, discharge of tax claim or removal from sale,

(3) that the property was exposed to public sale and the date of such sale,

(4) that before exposing the property to public sale the bureau fixed an upset price, as herein provided, and

(5) that it was unable to obtain a bid sufficient to pay said upset price.

Section 610 of the Law. "Upon the presentation of such petition, accompanied with searches, showing the state of the record and the ownership of the property and all tax and municipal claims, liens, mortgages, ground rents, charges and estates against the same, the court shall grant a rule upon all parties thus shown to be interested to appear and show cause why a decree should not be made that said property be sold, freed and cleared of their respective tax and municipal claims, liens, mortgages, charges and estates, except separately taxed ground rents." Id.

Service of the rule to show cause why a property should not be sold at judicial sale shall be made upon all parties of interest named in the rule. Section 610 of the Law; Section 611 of the Law, 72 P.S. § 5860.611. An owner is a party of interest. Montgomery County Tax Claim Bureau v. Mermelstein Family Trust, 836 A.2d 1010 (Pa.Cmwlth.2003); Bell v. Berks County Tax Claim Bureau, 832 A.2d 587 (Pa.Cmwlth.2003); In re Tax Claim Bureau of Lehigh County Sale No. 49-28, 702 A.2d 1105 (Pa.Cmwlth.1997). "Owner" is defined by the Law as "the person in whose name the property is last registered, if registered according to law, or, if not registered according to law, the person whose name last appears as an owner of record on any deed or instrument of conveyance recorded in the county office designated for recording...." Section 102 of the Law, 72 P.S. § 5860.102.

The notice provisions of the Law guard against the deprivation of property without due process of law. Difenderfer v. Carbon County Tax Claim Bureau, 789 A.2d 366, 368 (Pa.Cmwlth.2001). Strict compliance with the notice provisions is required because the "tax sale laws were...