Cathy Holler (Appellant) appeals from the December 4, 2008 order of the Court of Common Pleas of Beaver County (trial court) which denied Appellant's petition entitled "Emergency Verified Motion to Enforce this Court's Order of November 30, 2007 to Vacate an Improperly Scheduled Judicial Sale for December 8, 2008." Also before our court is the Beaver County Tax Claim Bureau's (Tax Bureau) motion to quash the appeal as moot or as an interlocutory order. We deny the Tax Bureau's motion to quash, affirm the trial court in part and reverse and remand to the trial court in part.
The subject property, located at 576 Merchant Street in Ambridge (Property), has been owned by Susan Markvan (Markvan) since 1972. Appellant is Markvan's daughter.
In October of 2002, the Tax Bureau entered into an installment agreement with Appellant. Thereafter, Appellant failed to make such payments in accordance with the agreement and on January 9, 2003, Appellant filed for bankruptcy. Because of Appellant's failure to make payments, the installment agreement was declared null and void and the Property was listed for upset sale in September of 2003, however, it was not sold.
Thereafter, the Tax Bureau listed the Property for judicial sale. In July of 2004, Appellant petitioned for a stay of the judicial sale. The trial court advised Appellant that the delinquent taxes on the Property totaled $4,612.00, including interest and costs. Appellant agreed not only to the $4,612.00 total, but also agreed to pay, thereafter, the sum of $545.00 per quarter. The trial court removed the Property from the list, ordering in pertinent part as follows:
Trial court order, July 15, 2004.
On December 5, 2005, the Property was sold at a judicial sale for nonpayment of real estate taxes. Appellant contested the sale and on June 20, 2006, the parties consented to return the Property to the status quo prior to the sale. Thus, the Property was returned to Markvan.
On February 12, 2007, Appellant's bankruptcy was discharged. On May 12, 2007, Markvan passed away. However, no estate was opened for Markvan and a deed was not conveyed to Appellant for the Property.
On July 16, 2007, the Tax Bureau petitioned for judicial sale of the Property for nonpayment of real estate taxes. The trial court granted the Tax Bureau's petition for lack of response, issued a rule to show cause and scheduled a hearing for September 17, 2007. On October 10, 2007, the judicial sale of the Property was scheduled for December 3, 2007.
Thereafter, Appellant allegedly received informal notice of the judicial sale from a neighbor and immediately, on November 28, 2007, filed an emergency petition to
On November 30, 2007, the trial court held oral argument. The trial court judge and Appellant stated at the hearing on November 30, 2007, in pertinent part, as follows:
Trial court record, November 30, 2007. The trial court granted Appellant a continuance of the judicial sale date and removed the Property from the December 3, 2007 judicial sale list. The trial court ordered in pertinent part as follows:
Trial court order, November 30, 2007, at 1. The record is clear that Appellant was provided with notice of the delinquent taxes totaling $10,305.71. The trial court had Appellant acknowledge the total amount of delinquent taxes by her signature. Appellant acknowledged the delinquent tax notice as "received", but not as "correct". Appellant did request an itemization to explain the miscellaneous charges that were included in the amount of taxes owed.
On January 9, 2008, Appellant's attorney sent a letter to the Tax Bureau requesting a listing of the taxes assessed, the interest accrued, the penalties assessed, and the costs assessed on the two parcels at 576 and 575 Merchant Street.
On January 11, 2008, the Tax Bureau responded to Appellant's letter stating, among other things, that a payment history report for each parcel would cost $5.00.
On January 21, 2008, Appellant's attorney sent the Tax Bureau another letter which contained a check for $10.00 to obtain payment history reports for the two properties. Appellant again requested the same information, noting that she wanted the reasons for the costs and the penalties and the time period for the interest amounts.
On January 29, 2008, the Property was deeded from Markvan's estate to Appellant. However, such deed was not recorded.
On January 31, 2008, Appellant submitted to the trial court, an affidavit in which she set forth that an estate had been opened for her mother, that Appellant was now the owner of the Property, as she included the deed, and that on January 21, 2008, she sent the Tax Bureau a certified letter which included a check for expenses in order to obtain her tax records and information to check the accuracy of the tax amounts allegedly due and owing, to insure that the taxes and charges she paid in prior years were correctly allocated between the two properties. Appellant stated that regarding "costs", she wanted to know precisely what those identified costs were, which ones were paid, and what the codes and other account identification
Thereafter, Appellant again claimed that she informally learned that the Property was scheduled for tax sale on December 8, 2008. Appellant, on December 4, 2008, presented the subject petition in civil motions court, attempting to enforce the trial court's order of November 30, 2007, and questioning the rescheduled tax sale and the recalculated taxes and costs of $12,983.65 and seeking a reduction to $10,305.71, which was the amount stated in the November 30, 2007 order.
On December 4, 2008, the trial court denied Appellant's petition. The trial court in its opinion dated March 12, 2009, stated in pertinent part as follows:
Trial court opinion, March 12, 2009, at 1-4. On December 8, 2008, Appellant paid the delinquent taxes in full, under protest, and the Property was removed from the judicial tax sale list. The receipt from the Tax Bureau sets forth the costs as follows:
Bureau Costs
Entry of Claim
Satisfaction of Claim
Postage
Advertising
Constable Sheriff
Stay of Sale
Lien Certificate
Search
Misc. $3580.00
Total Costs. $3580.00
The Tax Bureau asserts that because Appellant paid the taxes, thus removing the Property from the judicial tax sale list, the issue is moot and the appeal should be quashed. Alternatively, the Tax Bureau argues that the trial court's order of December 4, 2008, is an interlocutory order and therefore, not appealable.
As to whether the trial court's order of December 4, 2008, was appealable, we observe that it had the automatic effect of relinquishing judicial power to act further and transferred all future proceedings to another non-judicial governmental unit to perform a ministerial function, i.e. the judicial sale. Thus, the December 8, 2008 order was an appealable order pursuant to Pa. R.A.P. 311(f), as an interlocutory appeal as of right. Pa. R.A.P. 311(f) provides in pertinent part as follows:
The trial court made it clear that it would take no further action to protect Appellant's Property. Thus, Appellant had to pay under protest the contested, unitemized miscellaneous charges in order to keep the Property. Thus, the interlocutory appeal of the December 8, 2008 order was appealable under Pa. R.A.P. 311(f), as of right, as it was an issue that would ultimately evade appellate review if an immediate appeal was not allowed.
Further, the Appellant's issues are not moot, as she paid the taxes under protest, thus the issue of the accuracy of the amount due was not waived. See Universal Film Exchanges, Inc. v. Board of Finance and Revenue, 409 Pa. 180, 186, 185 A.2d 542, 545 (1962)(taxes paid under duress, no statutory authority required or necessary to enable taxpayers to recover the amounts paid).
Now, before this court, Appellant contends that the trial court erred in failing to determine that a homeowner may not be compelled, by threat of a judicial sale, to pay thousands of dollars of alleged unitemized, aggregate costs when claimed by the Tax Bureau, where repeated requests for itemization were refused, and where the alleged payment was made under protest for fear of losing the Property at a judicial sale.
Specifically, Appellant contends that: (1) the trial court denied her statutory right to pay the claimed taxes in three installment payments over a twelve month time period, in determining that the Tax Bureau did not violate the Real Estate Tax Sale Law (Law)
Initially, Appellant contends that she was denied her statutory right to pay the claimed taxes in three installment payments over a twelve month time period. Appellant contends that Section 603 of the Law, 72 P.S. § 5860.603, authorizes the taxpayer to elect to pay delinquent taxes in installments over a one year period.
Section 603 of the Law provides that "[a]ny owner or lien creditor of the owner may, at the option of the bureau, prior to sale ... enter into an agreement, in writing, with the bureau to stay the sale of the property upon the payment of twenty-five per centum (25%) of the amount due on all tax claims ... and ... to pay the balance... in not more than three (3) installments all within one (1) year of the date of said agreement...." 72 P.S. § 5860.603 (Emphasis added).
As such, it is not a statutory right of the taxpayer to pay delinquent taxes in installments, but rather an option which is determined by the Tax Bureau. The Tax Bureau did agree, in October of 2002, to enter into such agreement with Appellant. However, Appellant failed to make such payments in accordance with the agreement. Thus, the installment agreement was declared null and void and the Property was listed for upset sale in September of 2003. However, it was not sold.
The Tax Bureau did not err in refusing to accept a partial payment in 2008, some six years after the installment agreement, was executed, inasmuch as installment agreements only last for one year. 72 P.S. § 5860.603(2). We must note that Section 603 of the Law relates strictly to the procedure and sale of property prior to and during an upset sale, not a judicial sale. Judicial sales are governed by Sections 610-612 of the Law, 72 P.S. §§ 5860.610-5860.612, and do not provide for partial payments or installment agreements. Thus, Appellant's argument as to whether or not the Tax Bureau erred in not accepting Appellant's check after the judicial sale scheduled for December 3, 2007, was continued, is in error, as Section 603 of the Law only applies to upset sales.
Second, Appellant contends that the Tax Bureau violated Section 605 of the Law, which requires that a valid upset sale precede a valid judicial sale. Appellant states that where, as here, an installment agreement existed, that a valid upset sale must occur after the installment agreement default. 72 P.S. § 5860.605. Specifically, Appellant contends that since the Tax Bureau entered into an installment agreement with her that it explicitly acknowledged that Appellant was one of the reputed owners of the Property. The Tax Bureau did enter into the agreement with Appellant. However, the installment agreement states that the Property owner is Markvan. Thereafter, Appellant defaulted on the agreement and the Property was exposed at the September 8, 2003 upset sale pursuant to Section 603 of the Law. As Markvan's Property was exposed to an upset sale prior to the scheduling of
Appellant further contends that no sale, judicial or upset was proper, as she had filed for bankruptcy. However, Appellant was not the record owner of the Property at the time of her bankruptcy filing in January of 2003. The Property was still recorded and deeded to Markvan and her husband. Appellant possessed no interest in the Property which could have become the property of the bankruptcy estate. Further, the Tax Bureau did not petition for judicial sale until July of 2007, after Appellant's bankruptcy had been discharged in February of 2007.
Third, Appellant contends that a valid tax body return must precede a valid tax bureau tax claim. Specifically, Appellant states that the record shows that certain identified taxes, interest and penalties were wrongly charged to the Property and paid by Appellant on December 8, 2008. Appellant asserts that in 2005 when the Property was illegally sold, the Tax Bureau did not issue a return in Markvan's name, thus Appellant is not responsible for such taxes, interests and costs which accumulated during that time. Section 301 of the Law provides:
72 P.S. § 5860.301. Thus, the tax goes with the property, not the person and Appellant would be responsible for any taxes which continued to accumulate, even while Markvan was not officially the record owner.
Fourth, Appellant contends that she was denied statutory and constitutionally adequate notice because she was not notified or provided a reasonable opportunity to respond to the Tax Bureau's October 10, 2008 request for a judicial sale date and the trial court's October 10, 2008 rule setting December 8, 2008 as the judicial sale date. Appellant bases this argument upon the notice requirements of Section 601 and 602 of the Law, which pertain to upset sales, not judicial sales. 72 P.S. §§ 5860.601 and 5860.602.
The requirements for a judicial sale are set forth in Sections 610 through 612 of the Law, 72 P.S. §§ 5860.610-5860.612. The Tax Bureau notified the record holder, Jeffrey Markvan as the executor of the estate of Susan Markvan, as well as any and all lien holders as depicted by a proper title search. In addition, a copy of said rule and order was mailed to Appellant's last known address via first class, United States postal service. Further, the Tax Bureau made three attempts to personally serve Appellant, as an interested party, but such attempts proved fruitless, as certified by the record. R.R. at 216a-222a. Appellant's attorney, Malakoff, was not served, as Malakoff did not file his appearance for Appellant until after the December 4, 2008 hearing. Additionally, as noted in the trial court's order of November 30, 2007, no further notice was required.
Fifth, Appellant contends that a home owner can only be taxed statutory record costs, not unitemized aggregate costs. In accordance with Section 309 of the Law, a valid tax claim must include the names of the taxing districts, the name of the owner of the property against which it is filed and a description of the property. 72 P.S. § 5860.309. Appellant claims that because of the multitude of invalid upset and judicial
Appellant states that she has been unable to obtain an accounting or itemization of the unitemized and aggregate costs, as such request was denied by the Tax Bureau. Appellant further contends such itemization was ordered by the trial court at its November 30, 2007 hearing.
Appellant cites to Section 314 of the Law which provides for proceedings to attack the validity of a claim, stating that the Tax Bureau probably overcharged her costs. Section 314 of the Law provides in pertinent part as follows:
72 P.S. § 5860.314(a) and (b). Section 311 of the Law provides that "[o]n the first day of January following" the tax notice, "if the amount of the tax claim referred to in the notice has not been paid, or no exceptions thereto filed, the claim shall become absolute." 72 P.S. § 5860.311.
The present controversy was brought through Appellant's petition to enforce a trial court order and vacate a judicial sale. Appellant did not file exceptions to any tax notice with the Tax Bureau, however, Appellant did not receive notice from the Tax Bureau. Thus, the Tax Bureau's tax notice did not become absolute for the years in question here and the issue was properly before the trial court.
Section 7 of the Act of July 22, 1936, P.L. 67, further provides that "upon application ... by any
In Montgomery County Tax Claims Bureau Appeal, 204 Pa.Super. 409, 205 A.2d 104 (1964), the tax bureau conducted an upset sale of appellees' property. The appellees filed objections and exceptions to certain costs in the claim on the ground that they were not chargeable to them under the Law. After a hearing, the court sustained objections and exceptions to certain costs charged by the bureau and ordered it to refund these costs to appellees. The tax bureau had set out the itemized costs in its notice, so that appellees knew what the itemized costs were and, when they disagreed with a cost, they were able to contest it.
In the present controversy, Appellant was not provided a detailed itemization of the costs due. In fact, the Tax Bureau's form provides areas for such itemization and the Tax Bureau failed to include such information for Appellant.
Finally, Appellant contends that she was denied a hearing at which time the unitemized aggregate costs and other disputed tax claims and statutory irregularities could be contested, reviewed and adjudicated by the court on a factual record. Specifically, Appellant argues that the trial court ordered on November 30, 2007, that Appellant be provided an itemization of the claimed aggregate costs due and a hearing at which she could contest the unitemized, aggregate costs.
A review of the record reveals that Appellant should be provided a hearing limited to the itemization of the Tax Bureau's costs and whether such costs would be permitted under the Law. As previously stated, the Tax Bureau provided Appellant with the tax due accompanied by "Bureau Costs". Although the Tax Bureau's form provides for costs associated with postage, advertising, lien certification, etc., the only amount listed on the form was for miscellaneous costs in the amount of $3580.00, and total costs of $3580.00. We agree with Appellant that she is entitled to an itemization of the costs she owed and not merely a miscellaneous grouping of costs.
Accordingly, we must deny the Tax Bureau's motion to quash, affirm the trial court's order in part, reverse in part and remand for a hearing to order the Tax Bureau to itemize costs that were charged, whether such costs would be permitted under the Law and in the event any costs paid by Appellant are not identified by the Tax Bureau as properly chargeable, to order a refund of same to Appellant.
AND NOW, this 20th day of September, 2010 the Beaver County Tax Claim Bureau's motion to quash the appeal is denied and the order of the Court of Common Pleas of Beaver County in the above-captioned matter is affirmed in part, reversed in part and remanded for a hearing regarding the costs.
Jurisdiction relinquished.
I respectfully dissent to the majority's conclusion to remand the present matter "for a hearing to order the Tax Bureau to itemize costs that were charged, whether such cost were permitted under the Law and in the event any costs paid by Appellant are not identified by the Tax Bureau as properly chargeable, to order a refund of the same." Opinion at 368.
The majority astutely has recounted the procedural history as noted by the trial court:
Opinion of the Trial Court, March 12, 2009, at 1-4; Reproduced Record at 198a-201a.
I believe that because Appellant paid the taxes owed prior to the judicial sale, any challenge concerning a lack of a detailed itemization of the costs due is moot. I would affirm in the order of the trial court across the board.
