IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Raymond Thomas and Dawn Thomas, :
:
Appellants :
:
v. : No. 743 C.D. 2021
: Argued: November 14, 2022
:
County of Bucks Tax Claim Bureau :
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge (P)
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: February 16, 2023
Following remand,1 Raymond and Dawn Thomas, husband and wife
(collectively Owners), appeal from an order of the Bucks County Court of Common
Pleas (trial court) denying their Petition to Vacate and Set Aside (Petition to Set
Aside) the sale of their home, located at 284 Wynadotte Road, Fairless Hills,
Pennsylvania (Property), to ADR Investments, LLC (Intervenor)2 at the Bucks
County Tax Claim Bureau’s (Bureau) December 12, 2017 upset tax sale for unpaid
taxes for the 2015 tax year pursuant to the Real Estate Tax Sale Law3 (Tax Sale
1
See Thomas v. County of Bucks Tax Claim Bureau (Pa. Cmwlth., No. 1352 C.D. 2019,
filed December 29, 2020) (Thomas I).
2
The trial court granted Intervenor, as the purchaser of the Property, intervenor status.
3
Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. §§5860.101-5860.803.
Law). Owners argue that the trial court erred or abused its discretion by concluding
that Owners’ reliance on a Bureau notification regarding the 2016 tax year was
unreasonable; admitting the Bureau’s hearsay evidence over Owners’ objections;
disregarding this Court’s remand decision; and allowing the Bureau to recant a prior
judicial admission. Upon review, we affirm.
I. Background
Owners failed to pay taxes on their Property for the tax years 2015,
2016, and 2017. Reproduced Record (R.R.) at 21a. In 2017, the Bureau initiated
proceedings to sell the Property for outstanding property tax delinquencies for the
tax years 2015 and 2016.
With regard to the 2015 tax delinquency, the Bureau undertook the
following actions. On July 25, 2017, the Bureau sent notice of the sale via certified
mail to each owner advising Owners that their Property would be sold at an upset
tax sale on September 19, 2017, but the notices were returned unclaimed. R.R. at
24a-25a, 120a-21a, 124a-25a. On August 17, 2017, the Bureau published the notices
in three newspapers. Id. at 26a-27a. The Bureau directed the Bucks County Sheriff’s
Department to personally serve and post the Property. Id. at 29a-30a. Because the
certified mail notices were returned, the Bureau postponed the sale of the Property.
Id. at 190a; see id. at 31a.
On October 4, 2017, the Bureau filed with the trial court a Petition to
Waive Personal Service. Certified Record (C.R.), Petition to Waive Personal
Service. The Bureau requested permission to sell several properties, including
Owners’ Property, at the December 12, 2017 upset tax sale without the requirement
of personal notice to the owner-occupants based upon a showing of good cause. Id.
2
On October 17, 2017, the trial court granted the Bureau’s Petition to Waive Personal
Service. C.R., Trial Court Order, 10/17/17; see R.R. at 2a. On November 30, 2017,
the Bureau mailed Owners a final notice, via certified mail, advising them that their
Property would be sold at the December 12, 2017 upset tax sale. R.R. at 34a. The
final notice was not returned. Id. at 34a.
Meanwhile, the Bureau initiated collection efforts for Owners’ 2016 tax
delinquency. Significant to this appeal, on November 27, 2017, the Bureau posted
a notice on the Property that stated the Property would not be exposed to an upset
tax sale until sometime after July 1, 2018 (November 27, 2017 Notice). The
November 27, 2017 Notice listed Owners’ tax arrearages for 2016 and “prior
year(s).” R.R. at 140a; see id. at 21a.
On December 12, 2017, the Bureau held the upset tax sale for the
Property. Trial Court Order, 6/1/21, Finding of Fact (F.F.) No. 5; R.R. at 188a. The
sale was held because of Owners’ nonpayment of the 2015 taxes. F.F. No. 6; R.R.
at 188a. The Bureau sold the Property to Intervenor, which placed the highest bid.
F.F. No.8; R.R. at 188a; see R.R. at 17a.
On January 11, 2018, Owners filed a Petition to Set Aside objecting to
the sale of their Property. Owners claimed that they did not receive proper notice of
the December 12, 2017 upset tax sale as required by the Tax Sale Law. Although
Owners admitted actual notice of the upset tax sale, they claimed that they were
confused by and relied upon the November 27, 2017 Notice, which stated that the
Property would not be exposed to an upset tax sale before July 1, 2018. The
November 27, 2017 Notice included taxes owed for 2015 and 2016. Owners argued
that this faulty notice coupled with other representations made by the Bureau in
3
response to a request for payment plan led them to believe that the sale would not be
held until after July 1, 2018.
The Bureau filed an answer to the Petition to Set Aside denying the
material allegations. The trial court considered the Petition to Set Aside without
holding an evidentiary hearing upon determining that Owners had not presented a
prima facie challenge to the tax sale based on faulty notice. By order dated June 17,
2019, the trial court initially denied the Petition to Set Aside and ordered the
confirmation of the December 12, 2017 upset tax sale. The trial court then vacated
the June 17, 2019 order to allow the parties to submit briefs. By order dated August
16, 2019, the trial court again denied Owners’ Petition to Set Aside and confirmed
the December 12, 2017 upset tax sale. In the opinion that followed, the trial court
explained that the Bureau “strictly complied” with the Tax Sale Law notice
requirements and Owners had actual notice of the impending sale. See Trial Court
Op., 12/6/19, at 5.
Owners filed a notice of appeal to this Court. R.R. at 6a. This Court
vacated the trial court’s order and remanded the matter to the trial court for further
proceedings. See Thomas v. County of Bucks Tax Claim Bureau (Pa. Cmwlth., No.
1352 C.D. 2019, filed December 29, 2020) (Thomas I). We opined:
[Owners] admission of receiving actual, advance notice of
the September 1[9], 2017 upset tax sale via personal
service upon [Dawn] Thomas would, under other
circumstances, fatally undermine their claim that the
Bureau did not comply with [the Tax Sale Law’s] notice
requirements. This actual notice via personal service
complied with the strict requirements of . . . [the Tax Sale
Law] . . . . Furthermore, this actual, advance notice
relieved the Bureau of any obligation to notify [Owners]
that their Property was to be exposed for purchase on
December 12, 2017, rather than as originally scheduled on
September 19, 2017. See 72 P.S. §5860.601(a) (stating in
4
relevant part, “[t]he bureau shall schedule the date of the
sale no earlier than the second Monday of September and
before October 1, and the sale may be adjourned,
readjourned or continued. No additional notice of sale is
required when the sale is adjourned, readjourned or
continued if the sale is held by the end of the calendar
year.”).
Thomas I, slip op. at 14-15 (internal citations and footnote omitted). However, we
determined that “the notices that were posted at the Property and mailed to [Owners]
complicate[d] things significantly.” Id. at 15. The November 27, 2017 Notice set
forth a tax arrearage for 2016 and “prior years” and stated that the Property would
not be exposed to an upset tax sale until after July 1, 2018. Id. at 15. However, the
prior notices related to the 2015 taxes informed Owners that the Property would be
available for purchase at the September 19, 2017 upset tax sale or another legally
acceptable date. Id. at 15. “There is thus a prima facie viable argument that the
Bureau failed to properly notify [Owners] that the Property might be sold at the
December 12, 2017 upset tax sale, due to contradictory and inconsistent information
contained in the Bureau’s mailed, personally served, and posted notices.” Id. at 15-
16. Thus, we remanded to the trial court to conduct an evidentiary hearing to
determine whether Owners relied upon the Bureau’s November 27, 2017 Notice that
the Property would not be put up for purchase at an upset tax sale until after July 1,
2018, and whether such reliance was reasonable under the circumstances. Id.
At the remand hearing held on February 11, 2021, Barbara Dinoia,
former Bureau Director (Director), testified regarding the Bureau’s compliance with
the Tax Sale Law. On July 25, 2017, the Bureau sent notice via certified mail to
both Owners individually indicating their 2015 tax delinquency and advising them
that an upset tax sale was set for September 19, 2017. R.R. at 24a-25a, 120a, 124a.
Both certified mailings were returned to the Bureau as “unclaimed. Id. at 25a. On
5
August 17, 2017, the Bureau published the notice of sale in the Philadelphia Inquirer,
the Intelligencer, and the Bucks County Law Reporter. Id. at 26a-27a. Director
testified that the Return of Personal Service executed by the Bucks County Sheriff’s
Department indicated that the Deputy Sheriff personally served Dawn Thomas with
the notice of sale and posted the notice of sale on the Property on August 29, 2017.
Id. at 30a, 135a. The sale was continued to December 12, 2017, because the sale
notices were not claimed and there were ongoing efforts to contact Owners. Id. at
31a.
The Bureau offered 10 exhibits. R.R. at 111a. Exhibit D-1 contained
the Bureau’s Lien Certificate that lists the delinquent taxes owed on Owners’
Property and phone notes. Id. at 112a-18a; see id. at 18a-19a. Director testified that
it is the Bureau’s policy for employees to maintain records after every contact with
a constituent. Id. at 19a. Director testified that, according to Exhibit D-1, the Bureau
attempted to call Owners on November 9, 2017, and December 7, 2017, to no avail.
Id. at 22a. On November 17, 2017, the Bureau received a call from Dawn Thomas.
Id. at 20a. During that call, a Bureau representative went over payment plan options
with her, and then mailed the payment plan and payment plan rules to Owners. Id.
at 20a.
Exhibit D-10 is a proof of mailing that lists a recipient list for all letters
mailed on November 30, 2017. R.R. at 35a. Director testified that Exhibit D-10
included a copy of the sample letter sent to owners. Director explained that the
sample letter is not an exact copy of the letter sent to Owners because the Bureau
does not maintain those records, but it contains the same language that would have
been used in the letter that was sent to Owners and clearly notified Owners of the
6
December 12, 2017 sale date. Id. at 35, 37. Owners objected to Exhibits D-1 and
D-10 as hearsay. Id. at 38a, 79a. The trial court overruled the objections. Id. at 44a.
Dawn Thomas and her husband both testified regarding their serious
and ongoing health ailments in the years preceding the sale.4 R.R. at 83a-84a, 98a-
102a. Dawn Thomas acknowledged that her mental state at the time was “not good.”
Id. at 82a. She testified that she was not personally served with the notice, but she
admitted to actual notice based on the posting located on her door. Id. at 84a-85a.
She could not remember what notices were mailed to her because the bills were
“overwhelming.” Id. at 85a. She testified that, after receiving notice of the upset
tax sale, she visited the Bureau along with her son in September of 2017. Id. at 85a-
86a. She was advised that the sale would be changed to a later unspecified date, and
that she would be able to set up a payment plan. Id. at 86a-87a. When she received
the November 27, 2017 Notice, Dawn Thomas believed the sale would not occur
until after July 1, 2018. R.R. at 83a. She testified that she was confused when her
Property was sold because the November 27, 2017 Notice stated the Property would
not be sold until after July 1, 2018. Id. However, Dawn Thomas admitted she did
not make further inquiries, make any payments, set up a payment plan, or leave
contact information with the Bureau. Id. at 93a-95a.
Dawn Thomas’ son also testified that he visited the Bureau with his
mother. R.R. at 104a-105a. Although he did not speak with a Bureau representative,
he understood from that visit that the sale may be continued to a future date. Id. at
105a-06a.
Based upon the testimony and evidence presented, the trial court issued
findings of fact and conclusions of law and denied the Petition to Set Aside. See
4
Dawn Thomas was diagnosed with kidney cancer and had surgery to remove her kidney.
R.R. at 82a-83a. Raymond Thomas was diagnosed with leukemia. R.R. at 98a.
7
R.R. at 188a-93a. The trial court detailed the Bureau’s efforts to comply with the
Tax Sale Law. F.F. Nos. 15-20; R.R. at 189a. Critically, the trial court found that
the sheriff’s deputy personally served Dawn Thomas with the notice of sale and
posted the Property on August 29, 2017. F.F. Nos. 18-20; R.R. at 189a. Although
Dawn Thomas denied personal service, she admitted actual notice upon receiving
the posted notice. F.F. No. 21; R.R. at 189a. Although Dawn Thomas claimed she
visited the Bureau after receiving the posted notice in September 2017, she never
signed a payment plan, tendered any money towards the delinquent tax balance,
indicated what date the sale was going to be moved to, or left any contact information
for the Bureau. F.F. Nos. 22-23; R.R. at 190a. Dawn Thomas understood that she
had an obligation to pay property taxes and that there were consequences for the
failure to do so. F.F. No. 52; R.R. at 192a.
Ultimately, the trial court concluded that the Bureau provided Owners
with all required notices pursuant to the Tax Sale Law. Trial Court Order, 6/1/21,
Conclusions of Law (C.L) Nos. I(1)-I(4); R.R. at 192a-93a. The trial court further
concluded that Owners did not reasonably rely on the November 27, 2017 Notice
that their Property would not be sold until July 2018. C.L. Nos. II(1)-II(3); R.R. at
193a.
In the opinion that followed, the trial court opined that, although Dawn
Thomas denied personal service, her testimony in this regard was not credible,
noting her statements were in “contradiction to the plethora of contradictory
evidence presented.” Trial Court Op., 8/19/21, at 6. “Believing Dawn Thomas
would require this Court to determine that both the Return of Personal Service
executed by the Bucks County Sheriff’s Department and the phone notes entered
into the [Bureau’s] system were fabricated.” Id. at 7. The trial court further opined
8
that Owners’ reliance on the November 27, 2017 Notice alone as a basis to believe
that their Property would not be sold at any upset tax sale until July 1, 2018, was not
reasonable considering all prior notices regarding the impending upset tax sale. Id.
at 8. “This is especially true considering the fact that the last notice of the [December
12, 2017 upset tax sale] was sent after the [November 27, 2017 Notice] was posted.”
Id. at 8 (emphasis in original). The trial court reasoned: “If [Owners] were confused
by the [November 27, 2017 Notice], it would have been reasonable for them, at a
minimum, to call the [Bureau] for clarification[,] and [Owners] had ample time to
do so between then and the sale date.” Id. Because Owners had actual notice of the
impending sale and did not reasonably rely on the November 27, 2017 Notice as a
basis to believe that their Property would not be sold at any upset tax sale until July
1, 2018, the trial court denied Owners’ Petition to Set Aside and confirmed the sale
of the Property. Owners’ appeal to this Court now follows.5
II. Issues
On appeal, Owners raise four issues. First, Owners contend that the
trial court erred or abused its discretion by concluding that Owners’ reliance on the
November 27, 2017 Notice that the sale of the Property would not take place until
after July 1, 2018, was unreasonable. Second, Owners assert that the trial court erred
by admitting Bureau Exhibits D-1 and D-10 over their hearsay objections. Third,
Owners argue that the Bureau disregarded Thomas I, in which this Court determined
that the Bureau’s notices did not comply with the Tax Sale Law. Fourth, Owners
5
In tax sale cases, this Court’s review is limited to determining whether the trial court
abused its discretion, erred as a matter of law, or rendered a decision without supporting evidence.
Maya v. County of Erie Tax Claim Bureau, 59 A.3d 50, 54 n.2 (Pa. Cmwlth. 2013).
9
maintain that the trial court erred by allowing the Bureau to recant a prior judicial
admission.
III. Discussion
A. Reasonable Reliance
First, Owners contend the trial court erred in determining that their
reliance on the November 27, 2017 Notice was unreasonable. Owners advance that
the November 27, 2017 Notice did not conform to specific formats required by the
Tax Sale Law because it listed all outstanding tax years, not just the 2016 tax
delinquency. The Notice informed Owners that the Property would not be put up
for sale if the taxes were paid before July 1, 2018. Owners received the Notice after
Dawn Thomas contacted the Bureau and was advised that the September 19, 2017
sale would be postponed and a payment plan would be set up. Owners maintain that
they reasonably relied on the November 27, 2017 Notice that the sale of their
Property was not imminent, when in fact it was listed for and ultimately sold at the
December 12, 2017 sale.
The primary purpose of the Tax Sale Law is to ensure the collection of
taxes, not to strip away a citizen’s property rights. Rice v. Compro Distributing,
Inc., 901 A.2d 570, 575 (Pa. Cmwlth. 2006). Therefore, adequate notice is a
prerequisite before the execution of any tax sale. Id. “In all tax sale cases, the tax
claim bureau ‘has the burden of proving compliance with the statutory notice
provisions.’” In re Consolidated Reports and Return by Tax Claims Bureau of
Northumberland County of Properties, 132 A.3d 637, 644 (Pa. Cmwlth. 2016)
(quoting Krawec v. Carbon County Tax Claim Bureau, 842 A.2d 520, 523 (Pa.
Cmwlth. 2004)).
10
The notice requirements relevant to this case are set forth in Sections
602 and 601(a)(3) of the Tax Sale Law, 72 P.S. §§5860.602, 5860.601(a)(3). Section
602 requires three different forms of notice to property owners prior to an upset tax
sale: notice by publication, posting, and certified/first-class mail. 72 P.S.
§5860.602. “‘If any of the three types of notice is defective, the tax sale is void.’”
In re Consolidated Reports, 132 A.3d at 645 (quoting Gladstone v. Federal National
Mortgage Association, 819 A.2d 171, 173 (Pa. Cmwlth. 2003)). “Notwithstanding
our mandate to strictly construe the notice provisions of the law, the notice
requirements of Section 602 of the [Tax Sale] Law are not an end in themselves, but
are rather intended to ensure a property owner receives actual notice that his or her
property is about to be sold due to a tax delinquency.” Id. “However, strict
compliance with the notice requirements of Section 602 is not required when the
Bureau proves that a property owner received actual notice of a pending tax sale.”
Id. (emphasis added).
In addition, if the owner occupies the property, Section 601(a)(3)
requires personal service of notice of the tax sale. 72 P.S. §5860.601(a)(3).6 “The
6
Specifically, Section 601(a)(3) provides:
No owner-occupied property may be sold unless the bureau has
given the owner[-]occupant written notice of such sale at least (10)
days prior to the date of actual sale by personal service by the sheriff
or his deputy or person deputized by the sheriff for this purpose
unless the county commissioners, by resolution, appoint a person or
persons to make all personal services required by this clause. The
sheriff or his deputy shall make a return of service to the bureau, or
the persons appointed by the county commissioners in lieu of the
sheriff or his deputy shall file with the bureau written proof of
service, setting forth the name of the person served, the date and
time and place of service, and attach a copy of the notice which was
served. If such personal notice cannot be served within twenty-five
(Footnote continued on next page…)
11
requirements of Section 601(a)(3) are cumulative and apply in addition to the tax
claim bureaus’ obligations to provide notice through publications, posting, and
mail.” In re Consolidated Reports, 132 A.3d at 645. The purpose of Section
601(a)(3) is to afford a homeowner with increased protection by way of additional
notice. Id. at 646. No owner-occupied property may be sold unless the Bureau has
given the owner occupant written service of such sale at least 10 days prior to the
sale by personal service by the sheriff or his deputy. 72 P.S. §5860.601(a)(3).
“[W]ithout receiving a waiver from a trial court, a tax claim bureau may not sell an
owner[-]occupied property absent personal notice to an owner-occupant because
actual notice of the tax sale does not waive strict compliance with the personal
service requirements of Section 601(a)(3).” In re Consolidated Reports, 132 A.3d
at 646. However, “[p]ersonal service of notice on one of the owners shall be deemed
personal service on all owners.” 72 P.S. §5860.601(a)(3).
As this Court has summarized:
[I]n the absence of actual notice, the Bureau must prove
strict compliance with the notice requirements of Section
602 of the Law. Further, and notwithstanding whether a
taxpayer received actual notice, the Bureau must
demonstrate that it personally served notice on any owner-
occupant of the Property subject to the upset tax sale or
obtained a waiver of personal service from the trial court.
In re Consolidated Reports, 132 A.3d at 646.
(25) days of the request by the bureau to make such personal service,
the bureau may petition the court of common pleas to waive the
requirement of personal notice for good cause shown. Personal
service of notice on one of the owners shall be deemed personal
service on all owners.
72 P.S. §5860.601(a)(3).
12
In Brodhead Creek Associates, LLC v. City of Monroe, 231 A.3d 69
(Pa. Cmwlth. 2020), this Court addressed the reasonableness of a taxpayer’s reliance
on a bureau employee’s statement that an impending upset tax sale would not take
place until the following year. In Brodhead, a landowner failed to pay property taxes
in 2014, 2015, and 2016, and received three notices regarding its tax delinquency,
all of which advised that the property would be sold if the taxes were not paid.
Notably, the landowner admitted that he had actual notice that his property would
be sold on May 24, 2017, for failure to pay the 2014 taxes. Brodhead, 231 A.3d at
71-72.
However, the third notice which was sent in April 2017, which related
to the 2016 tax year, listed all delinquent taxes owed for 2014, 2015, and 2016, and
advised that the property would not be sold before July 1, 2018. The landowner took
this notice to the tax claim bureau, and a clerk advised that the property would not
be sold until 2018. Based on this statement, the landowner did not pay his delinquent
taxes. The bureau sold the landowner’s property in May 2017 as a result of the 2014
tax delinquency, which remained unpaid. Brodhead, 231 A.3d at 72-73.
The landowner challenged the sale and argued that he relied on the
erroneous statement made by the bureau’s clerk and claimed that the bureau’s
notices were confusing. Both the trial court and this Court rejected the landowner’s
claims. We emphasized that the landowner had actual notice that his property would
be sold on May 24, 2017, based on his failure to pay the 2014 taxes. Brodhead, 231
A.3d at 75. It was unreasonable for the landowner to assume that the already-
scheduled tax sale would be put off another year “simply because [the landowner]
persisted, year after year, in failing to pay his taxes.” Id. at 76. We reasoned:
If we were to accept [the landowner’s] argument, each
time he failed to pay taxes, the tax sale would be
13
postponed, in accordance with the most recent notice.
. . . A taxpayer could avoid paying taxes ad finitum
despite having received notice of a scheduled sale due to
his failure to pay taxes in a prior year.
Id. Thus, we concluded that the landowner’s reliance on the notice and the clerk’s
statement that the sale would not transpire until after July 1, 2018, was unreasonable.
Id. at 77-78. We further concluded that the tax claim bureau complied with the Tax
Sale Law and provided requisite notice for each delinquent tax year, which “when
taken as a whole, in the context of the law, . . . were not confusing. Id. at 79. Thus,
we upheld the sale of the property. Id.
Here, the Bureau complied with the requirements of the Tax Sale Law
to provide notice of the upset tax sale for the 2015 delinquency. The Bureau sent
notice by certified/first-class mail, publication in three different newspapers, and by
posting the Property, as required by Section 602 of the Tax Sale Law. R.R. at 24a-
27a, 30a, 120a, 124a, 128a-132a, 134a, 137a; see id. at 84a. Although the mailed
notices were returned unclaimed, id. at 121a, 125a, Dawn Thomas admitted to actual
notice. Id. at 85a; see In re Consolidated Reports, 132 A.3d at 645. Although Dawn
Thomas denied personal service, the trial court credited the Bureau’s evidence that
the Bucks County Sheriff’s Department posted the Property and personally served
Dawn Thomas with the notice of the sale on August 29, 2017, in accordance with
Section 601(a)(3) of the Tax Sale Law. See R.R. at 30a, 135a. In addition, the
Bureau obtained a waiver of personal service from the trial court for good cause
shown. See C.R., Petition to Waive Personal Service; C.R., Trial Court Order,
10/17/17; see also R.R. at 2a.
These notices provided that the sale would be held on September 19,
2017. Although the tax sale was continued to December 12, 2017, additional notice
was not required because “the sale [was] held by the end of the calendar year.”
14
72 P.S. §5860.601(a). On November 30, 2017, the Bureau mailed a final notice of
the December 12, 2017 sale date to Owners, via regular mail, which was not
returned, suggesting it was properly delivered and received by Owners. R.R. at 36a.
As for Owners’ claims that they relied on the November 27, 2017
Notice that their Property would not be sold until after July 1, 2018, as in Brodhead,
such reliance was unreasonable. Dawn Thomas had actual notice of the pending
upset tax sale for the 2015 delinquency. Critically, Owners acknowledged their
obligation to pay taxes, but they never made any payments. See R.R. at 94a-95a.
Even assuming Dawn Thomas had visited the Bureau in September 2017,7 Owners
took no action following that visit to stop the sale of their Property. They made no
payments towards the delinquency and did not set up a payment plan. Despite Dawn
Thomas’ confusion upon receiving the November 27, 2017 Notice, she did not make
any further inquiries with the Bureau regarding the status of the impending sale.
Upon review, the trial court did not err or abuse its discretion in determining that
Owners’ reliance on the November 27, 2017 Notice that the Property would not be
put up for purchase at an upset tax sale until after July 1, 2018, was not reasonable
under the circumstances.
B. Exhibits
Next, Owners argue that the trial court erred by admitting and relying
upon Bureau Exhibits D-1, Bureau’s Lien Certificate and phone log, and D-10, proof
of mailing, over their hearsay objections. Owners contend that neither exhibit meets
the business record exception because they are untrustworthy and a foundation was
not properly laid. With regard to Exhibit D-1, Owners assert that Director never
7
The Bureau had no record of this visit. See R.R. at 20a-22a; see also id. at 117a-18a.
15
testified how the phone notes were maintained or whether they were made at the
time of each call. With regard to Exhibit D-10, Owners aver the Bureau presented
this exhibit for the first time at the remand hearing and offered it to prove that the
Bureau notified Owners that the sale would occur on December 12, 2017. However,
the proof of mailing contains a letter that was sent to a completely unrelated owner
on November 21, 2017, and does not contain a copy of the actual notice mailed to
Owners.
Hearsay is “a statement that (1) the declarant does not make while
testifying at the current trial or hearing; and (2) a party offers in evidence to prove
the truth of the matter asserted.” Pa. R.E. 801(c). Generally, “[h]earsay is not
admissible except as provided by these rules, by other rules prescribed by the
Pennsylvania Supreme Court, or by statute.” Pa. R.E. 802. One such exception to
the rule against hearsay exists for records of regularly conducted activities. Pa. R.E.
803(6). A record qualifies if:
(A) The record was made at or near the time by – or from
information transmitted by – someone with knowledge;
(B) the record was kept in the course of a regularly
conducted activity of a “business,” which term includes
business, institution, association, profession, occupation,
and calling of every kind, whether or not conducted for
profit; (C) making the record was a regular practice of that
activity; (D) all these conditions are shown by the
testimony of the custodian or another qualified witness, or
by a certification that complies with [Pa. R.E.] 902(11) or
(12) or with a statute permitting certification; and (E) the
opponent does not show the source of information or other
circumstances indicate a lack of untrustworthiness.
Pa. R.E. 803(6).
Here, Exhibit D-1 is the Bureau’s Lien Certificate and phone log. R.R.
at 112a-18a. It lists the delinquent taxes owed on the Property, and states for the
16
2015 tax year that Owners owed $4,263.84 in delinquent school taxes. Id. at 113a.
It also includes the Bureau’s phone notes with Owners. Id. at 117a. Director
testified that the Bureau’s policy requires employees to enter notes after every
contact with a constituent; employees are trained on how to enter notes; Director
oversees and instructs employees on how to enter the notes; and it is a violation of
Bureau policy to not enter a note. Id. at 19a. Contrary to Owners’ assertions,
Director’s testimony in this regard provided a proper foundation for the admission
of Exhibit D-1 under the business records exception to the hearsay rule. Thus, the
trial court did not err in admitting and relying upon this exhibit over Owners’ hearsay
objection.
As for Exhibit D-10, this exhibit is the Bureau’s proof of mailing for
the November 30, 2017 Notice. R.R. at 35a, 61a, 142a-44a. The exhibit lists the
names and addresses of the notice recipients, including both Owners, to whom the
Bureau mailed notices on November 30, 2017. Id. at 35a, 143a. The postmaster
stamped and signed the proof of mail verifying that the post office received the
letters as listed and mailed them on November 30, 2017. Id. at 36a, 143a. Director
testified that Exhibit D-10 also included a “sample” letter that is representative of
the notices mailed to Owners as well as other persons with delinquent taxes for 2015.
Id. at 36a, 61a, 144a. It is a form-letter template in which the Bureau fills in the
individual information for each property owner. See id. at 62a, 144a. As for why a
sample notice was offered and not the actual notice sent to Owners, Director
explained that the Bureau does not keep file copies of the actual notices sent. Id. at
63a. The Bureau only keeps copies of returned notices. Id. at 63a-64a. Owners’
November 30, 2017 Notices were not returned. Id. at 63a-64a. Director’s testimony
adequately laid a proper foundation for the admission of Exhibit D-10 to be used as
17
a sample. The trial court admitted this exhibit solely for “the purpose of establishing
what the letter would have been or should have been; it was nothing more than a
sample.” Trial Court Op., 8/19/21, at 11. It was “up to the parties to submit further
evidence as to whether this letter was representative of the one sent to [Owners].”
Id. at 10-11. Upon review, the trial court did not err in admitting this exhibit and
relying upon it merely as a sample.
C. Thomas I
Next, Owners argue that the trial court disregarded this Court’s prior
decision in Thomas I on remand. According to Owners, this Court determined that,
although there was actual notice of the sale, the Bureau’s inconsistent notices were
“facially noncompliant.” Appellants’ Brief at 4, 14. This Court remanded the matter
to the trial court solely to determine whether Owners’ reliance on the Bureaus’
inconsistent notices was reasonable.
In Thomas I, this Court concluded that the trial court erred by denying
the Petition to Set Aside without holding an evidentiary hearing. This Court further
found that there was a prima facie argument that the Bureau failed to properly notify
Owners that the Property might be sold at the December 12, 2017 upset tax sale
because of the contradictory and inconsistent information contained in the Bureau’s
notices. Id., slip op. at 16. It was specifically noted that our caselaw does “not
squarely contemplate a situation . . . where a tax [claim] bureau initially complies
with [the Tax Sale Law’s] notice requirements but then sends the affected property
owner potentially confusing, contradictory, and misleading information.” Id. The
remand was ordered to allow the parties to present evidence and testimony to
determine whether Owners reasonably relied upon the Bureau’s representation that
the Property would not be put up for purchase at an upset tax sale until after July 1,
18
2018. Id. This Court never held the Bureau’s notices were “facially noncompliant.”
Rather, this Court noted that an evidentiary hearing was necessary because of “the
strangely inconsistent sale notices that the Bureau provided to [Owners], which
cannot collectively be deemed to be facially compliant with the Tax Sale Law.” Id.
at 11 (emphasis added). An evidentiary hearing before the trial court was necessary
for the Bureau to establish strict compliance with the Tax Sale Law notice
requirements. Id. Following the evidentiary hearing, the trial court determined that
the Bureau met all the notice requirements. We conclude that the trial court adhered
to, and did not disregard, this Court’s prior decision. See Thomas I.
D. Judicial Admission
Finally, Owners contend that the trial court erred in allowing the Bureau
to reverse its prior admission that the notice mailed in Exhibit D-10 was identical to
the notices mailed in the beginning via certified mail. Owners argue that in the two
years prior to the remand hearing in this matter, the Bureau represented that on
November 30, 2017, it mailed a form of notice identical to the notice that it mailed
in July 2017. Owners assert that only after remand did the Bureau produce a new
form of notice.
A judicial admission is “an express waiver made in court or preparatory
to trial by a party or his attorney, conceding for the purposes of trial, the truth of the
admission,” and may be contained in pleadings, stipulations, and other like
documents. Sherill v. Workmen’s Compensation Appeal Board (School District of
Philadelphia), 624 A.2d 240, 243 (Pa. Cmwlth. 1993). For an averment to qualify
as a judicial admission, it must be a clear and unequivocal admission of fact. John
B. Conomos, Inc. v. Sun Company, 831 A.2d 696, 713 (Pa. Super. 2003). The fact
must have been unequivocally admitted and not be merely one interpretation of the
19
statement that is purported to be a judicial admission. Jones v. Constantino, 631
A.2d 1289, 1293-94 (Pa. Super. 1993).
Here, early in the proceedings, the Bureau originally represented that
the notice contained in Exhibit D-10 was identical to the initial notices previously
provided to the Owners. However, during the course of the remand hearing, the
Bureau acknowledged that the November 30, 2017 Notice was different from the
notices previously sent via certified mail. Id. at 42a. The Bureau offered the notice
in D-10 as a sample of what would have been mailed on November 30, 2017, because
the Bureau did not maintain actual copies of all the letters sent. Id. at 42a. The
Bureau’s clarification of a prior miscommunication does not constitute a reversal of
a prior judicial admission. The trial court did not err or abuse its discretion by
accepting this clarification.
IV. Conclusion
Although we express empathy for Owners and the unfortunate
circumstances that led to the sale of their home, the trial court did not err or abuse
its discretion by determining that Owners’ reliance on the November 27, 2017
Notice was unreasonable, admitting the Bureau’s exhibits, following our remand
instructions, or accepting the Bureau’s clarification. Accordingly, we affirm the trial
court’s order.
MICHAEL H. WOJCIK, Judge
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Raymond Thomas and Dawn Thomas, :
:
Appellants :
:
v. : No. 743 C.D. 2021
:
:
County of Bucks Tax Claim Bureau :
ORDER
AND NOW, this 16th day of February, 2023, the order of the Bucks
County Court of Common Pleas, dated June 1, 2021, is AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge