IN THE COMMONWEALTH COURT OF PENNSYLVANIA

IN THE COMMONWEALTH COURT OF PENNSYLVANIA Tax Claim Bureau of Lehigh : County 2013 Upset Tax Sale : : Objectors: Noe Gutierrez and : Susana Gutierrez : : Appeal of: Susana Gutierrez, : individually and as Administratrix : No. 118 C.D. 2014 of the Estate of Noe Gutierrez : Argued: March 12, 2015 BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ANNE E. COVEY, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI FILED: March 30, 2015 Susana Gutierrez (Objector), individually and as Administratrix of the Estate of Noe Gutierrez (Decedent), appeals the order of the Lehigh County Court of Common Pleas (trial court) dismissing her objections to the upset tax sale of property owned by Decedent, her husband, pursuant to the Real Estate Tax Sale Law (Tax Sale Law). 1 We affirm. 1 Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. 5860.101-5860.803.

Decedent was the record owner of three parcels of property located at 1454 Kern Road, 10150 Old 22, and 10104 Old 22, in Weisenberg Township, Lehigh County, which were sold at an upset tax sale in September 2013 to Kyle Henninger (Henninger). The Lehigh County Tax Claim Bureau (Bureau) sent notice to Decedent via certified mail that was returned as unclaimed that the properties had been sold. On October 15, 2013, a decree nisi confirming the sale was docketed indicating that objections or exceptions had to filed within 30 days pursuant to Section 607(b)(3) of the Tax Sale Law. 2 A decree of absolute confirmation of the sale was docketed on November 15, 2013, pursuant to Section 607(c) of the Tax Sale Law. 3 That same day, alleging that Decedent had recently died after the tax upset sale, Objector filed objections and exceptions to the sale based on the Bureau s failure to provide notice of the sale as required by Section 602 of the Tax Sale Law. 4 2 72 P.S. 5860.607(b)(3). Section 607 (b)(3) states that objections or exceptions thereto may be filed by any owner within thirty (30) days after the court has made a confirmation nisi of the consolidated return or that the return will be confirmed absolutely. 3 72 P.S. 5860.607(c). Section 607(c) states that [i]n case no objections or exceptions are filed to any such sale within thirty (30) days after the court has made a confirmation nisi, a decree of absolute confirmation shall be entered as of course by the prothonotary. 4 72 P.S. 5860.602. Section 602 of the Tax Sale Law states, in relevant part: (a) At least thirty (30) days prior to any scheduled sale the bureau shall give notice thereof, not less than once in two (2) newspapers of general circulation in the county, if so many are published therein, and once in the legal journal, if any, designated by the court for the publication of legal notices. * * * (Footnote continued on next page ) 2

The trial court enjoined the transfer of the deed to Henninger and issued a rule upon him and the Bureau to show cause why the sale should not be set aside, 5 and Henninger intervened in the trial court proceedings on the objections and exceptions. At a hearing before the trial court, the Bureau s Director, Timothy Reeves (Reeves), testified that Decedent had failed to pay the real estate taxes due for (continued ) (e) In addition to such publications, similar notice of the sale shall also be given by the bureau as follows: (1) At least thirty (30) days before the date of the sale, by United States certified mail, restricted delivery, return receipt requested, postage prepaid, to each owner as defined by this act. (2) If return receipt is not received from each owner pursuant to the provisions of clause (1), then, at least ten (10) days before the date of the sale, similar notice of the sale shall be given to each owner who failed to acknowledge the first notice by United States first class mail, proof of mailing, at his last known post office address by virtue of the knowledge and information possessed by the bureau. It shall be the duty of the bureau to determine the last post office address known to said collector and county assessment office. (3) Each property scheduled for sale shall be posted at least ten (10) days prior to the sale. 72 P.S. 5860.602(a), (e)(1)-(3). 5 See In re Judicial Sale, Tax Claim Bureau of Northampton County, Easton, PA, 720 A.2d 818, 821-22 (Pa. Cmwlth. 1998) (holding that the trial court may set aside a tax sale for lack of notice even after confirmation under Section 607(g) of the Tax Sale Law, 72 P.S. 5860.607(g)). 3

the 2011 tax year on the properties. 6 He stated that the matter was referred to the Bureau in February 2012, which sent Decedent a notice of delinquency via certified mail to 5131 Meadow Lane, Macungie, Pennsylvania, which was his address on file rather than the addresses of the subject parcels. He testified that the Bureau received a signed receipt indicating that Decedent had received the February 2012 delinquency notice mailed to that address. He stated that in March 2012, another delinquency notice was sent to Decedent by certified mail to that address, but that no signed 6 The trial court overruled Objector s standing objection to Reeves testimony regarding the circumstances of the tax sales of the properties based on Section 5930 of the Judicial Code, 42 Pa. C.S. 5930, commonly referred to as the Dead Man s Act, which states, in pertinent part: Except as otherwise provided in this subchapter, in any civil action or proceeding, where any party to a thing or contract in action is dead, neither any surviving or remaining party to such thing or contract, nor any other person whose interest shall be adverse to the said right of such deceased party, shall be a competent witness to any matter occurring before the death of said party. As the Superior Court has explained: The rationale behind the Dead Man s Act is that the law should not permit the surviving party to testify since he could lie and attempt to testify favorably to himself and adversely to the deceased party, knowing the other party is incapable of contradicting the fallacious testimony. In order for a witness to be disqualified from testifying under this statute, the deceased must have had an actual right or interest in the matter at issue, the interest of the witness must be adverse, and the right of the deceased must have passed to a party of record who represents the deceased s interests. Specifically, the application of the Dead Man s [Act] requires that the interest of the proposed witness be adverse to the interest of the decedent s estate. Punxsutawney Municipal Airport Authority v. Lellock, 745 A.2d 666, 670 (Pa. Super. 2000). The Dead Man s Act only applies to testimony and does not apply to documents or written evidence presented by the adverse surviving party. In re Rider s Estate, 409 A.2d 397, 400 (Pa. 1979). 4

receipt was returned. He testified that the Bureau posted the subject properties with a delinquency notice in July 2012. Reeves testified that because the taxes remained unpaid, in May 2013, the Bureau sent Decedent a notice of a public sale to occur in September 2013 by certified mail that was also returned as unclaimed; in June 2013, the properties were posted with notice of the sale by placing a placard on the buildings; and in July 2013, advertising of all of the properties offered by the Bureau for sale at that public sale, including Decedent s three parcels, was placed in two newspapers and the local law journal. He stated that in August 2013, the Bureau again sent Decedent notice of the pending sale by first-class mail which was not returned as undeliverable. Reeves testified that in addition to the August 2013 mailing, the notes in the file indicated that a Bureau employee, Kelly Mullin, called Decedent by telephone 7 at the number in the Bureau s records to leave messages regarding the pertinent part: 7 Section 607.1(a) of the Tax Sale Law, added by the Act of July 3, 1986, P.L. 351, states, in (a) When any notification of a pending tax sale or a tax sale subject to court confirmation is required to be mailed to any owner, and such mailed notification is either returned without the required receipted personal signature of the addressee or under other circumstances raising a significant doubt as to the actual receipt of such notification by the named addressee or is not returned or acknowledged at all, then, before the tax sale can be conducted or confirmed, the bureau must exercise reasonable efforts to discover the whereabouts of such person or entity and notify him. The bureau s efforts shall include, but not necessarily be restricted to, a search of current telephone directories for the county and of the dockets and indices of the county tax assessment offices, recorder of deeds office and prothonotary s office, as well as contacts made to any apparent alternate address or (Footnote continued on next page ) 5

upset tax sale, but that the party that answered the telephone continued to hang up when she spoke about the delinquent taxes. He acknowledged that he did not know whether it was Decedent who hung up the telephone. He stated that another Bureau employee told him that prior to the sale, Objector appeared at the Bureau to pay the delinquent taxes on three or four other properties and, when asked by the Bureau employee, she indicated that she did not want to pay the delinquent taxes on the subject properties. He testified that the Bureau sent Decedent notice by certified mail following the sale in September 2013, but that no signed receipt was returned. (continued ) 72 P.S. 5860.607a(a). telephone number which may have been written on or in the file pertinent to such property. When such reasonable efforts have been exhausted, regardless of whether or not the notification efforts have been successful, a notation shall be placed in the property file describing the efforts made and the results thereof, and the property may be rescheduled for sale or the sale may be confirmed as provided in this act. As this Court has explained: The statutory notice provisions in the Tax Sale Law must be strictly construed lest a person be deprived of property without due process. It is the tax claim bureau that has the burden of proving compliance with the notice provisions. In the case of an unclaimed certified mailing, the tax claim bureau must provide that it made reasonable efforts to discover the whereabouts of such person or entity and notify him. 72 P.S. 5860.607a(a). Maya v. County of Erie Tax Claim Bureau, 59 A.3d 50, 55 (Pa. Cmwlth. 2013) (citations omitted). 6

Objector, Decedent s wife, did not present any testimony or evidence at the hearing, including any testimony or evidence that the address to which the Bureau sent Decedent the notices of tax delinquency or the upset tax sale was incorrect; that Decedent had difficulties in receiving mail at that address; that there was a better address to send notice; or that the number that the Bureau used while attempting to reach Decedent by telephone was incorrect. 8 The trial court issued the instant order denying Objector s objections at the conclusion of the hearing, finding that the Bureau complied with the Tax Sale Law with respect to the sale of Decedent s three parcels of property. 9 In this appeal, 10, 11 Objector first claims that the trial court erred in denying her objections because the Bureau failed to comply with the notice 8 See Anderson v. Department of Transportation, Bureau of Driver Licensing, 744 A.2d 825, 827 (Pa. Cmwlth. 2000) ( [I]t is well settled in the law that attorneys statements or questions at trial are not evidence. ) (citation omitted). 9 While the trial court denied Objector s reconsideration motion, it appeared to reverse its prior determination stating, Careful review of the record adduced at hearing in this matter reveals, therefore, that there is simply insufficient evidence to establish that the Bureau complied with the notice requirements mandated by the General Assembly in Section 607a of the [] Tax Sale Law. Accordingly, the order which refused to set aside the sale of the subject properties, appears to have been improvidently granted. (3/14/14 Trial Court Opinion at 8). Nevertheless, this Court may affirm the decision of the trial court on any basis without regard to the basis upon which the trial court relied. Shearer v. Naftzinger, 747 A.2d 859, 861 (Pa. 2000). 10 This Court s review is limited to determining whether the trial court erred as a matter of law, abused its discretion, or rendered a decision without supporting evidence. Maya, 59 A.3d at 54 n.2. 11 This Court denied the application to intervene of an individual, John Gross, who alleged that he had purchased one of Decedent s parcels at a Sheriff s sale prior to the upset tax sale, but who did not appear before the trial court in the instant proceedings. 7

requirements of Section 607.1(a) of the Tax Sale Law. However, contrary to Objector s assertion, our review of the record demonstrates that the Bureau complied with the notice requirements of the Tax Sale Law and made reasonable efforts to notify Decedent of the impending upset tax sale. Section 602(e)(2) of the Tax Sale Law provides that where a return receipt is not returned to the Bureau by the post office, the Bureau must mail to the property owner an upset tax sale notice by first-class mail at least ten days before the date of the upset tax sale. As outlined above, Decedent received and signed a receipt for the notice of tax delinquency sent by certified mail to the 5131 Meadow Lane, Macungie, Pennsylvania address in February 2012, which was the address in the Bureau s files. While Decedent did not sign a receipt for notice of the upset tax sale that was sent to that address by certified mail in May 2013, the Bureau mailed the Section 602(e)(2) ten-day notice of the sale to that address by first-class mail and the ten-day notice was not returned as undeliverable. Moreover, Objector did not present any evidence that the 5131 Meadow Lane, Macungie, Pennsylvania address was incorrect or not an address at which Decedent received his mail; that he had difficulties in receiving his mail at that address; or that there was a better address to which the notices could have been sent. In addition, the notes in the Bureau s file indicated that an employee called Decedent by telephone to leave messages regarding the upset tax sale at a number in the Bureau s records, but that the party that answered the telephone continued to hang up when the employee spoke about the delinquent taxes. While Reeves acknowledged that he did not know whether it was Decedent who hung up the 8

telephone during the Bureau s calls, there is no record evidence that the telephone number that the Bureau called while attempting to notify Decedent of the impending sale was not Decedent s number or was not a number at which Decedent could be reached. As a result, the record shows that the Bureau complied with the notice requirements of Section 602 of the Tax Sale Law and made reasonable efforts to notify Decedent as required by Section 607.1(a). Pitts v. Delaware County Tax Claim Bureau, 967 A.2d 1047, 1053-54, 1055 (Pa. Cmwlth. 2009); In re Tax Sale of Real Property Situated in Jefferson Township, 828 A.2d 475, 478-80 (Pa. Cmwlth. 2003), aff d, 859 A.2d 471 (Pa. 2004). 12 affirmed. 13 Accordingly, for the foregoing reasons, the trial court s order is DAN PELLEGRINI, President Judge 12 It is in this respect that the instant appeal is distinguished from our opinion in Maya, 59 A.3d at 57, in which the record [was] devoid of evidence that the Tax Claim Bureau made any effort at all, let alone a reasonable one, to locate [the landowner]. 13 Objector also claims that the trial court erred in overruling her objection to Reeves testimony on the basis that the Dead Man s Act precludes such testimony. However, in order for the Dead Man s Act to apply, it must be proven that Reeves or the Bureau stood to gain or lose as the direct legal operation and effect of the judgment and that either had an interest in the matter that is adverse to that of Decedent. Punxsutawney Municipal Airport Authority, 745 A.2d at 670-71; Gibbs v. Herman, 714 A.2d 432, 436 (Pa. Super. 1998). Neither the Bureau nor Reeves had any such personal adverse interest and will not gain or lose in any direct way so the Dead Man s Act did not apply and the trial court did not err in this regard. 9