In Re Sale of Real Estate by Lackawanna County Tax Claim Bureau

DISSENTING OPINION BY

Senior Judge KELLEY.

I respectfully dissent. Herein, with respect to the upset tax sale, Appellants argue that the Bureau failed to establish that it complied with Section 602(e)(3) of the Real Estate Tax Sale Law1 (Law) which requires that “[ejach property scheduled for sale shall be posted at least ten (10) days prior to the sale.” Appellants contend that the posting was invalid for two reasons: (1) the posting affidavits were initialed, rather than signed by the constables; and (2) the posting affidavits were not notarized. In addressing Appellants’ foregoing contentions, the Majority only discusses the contention that the posting was invalid because the affidavits were not notarized. The Majority does not address Appellants’ contention that the postings were invalid because the affidavits were initialed by the constables rather than signed.

The Law is silent as to the manner of posting required, stating only that the property “shall be posted at least ten (10) days prior to the sale.”2 72 P.S. § 5860.602(e)(3). The common practice is for the person posting the property to provide the Bureau a posting affidavit certifying that the subject property was posted with notice of the impending sale. The Law does not define the term “affidavit”; however, Section 102 of the Judicial Code defines “affidavit” as follows:

Includes an unsworn document containing statements of fact and a statement by the signatory that it is made subject to the penalties of 18 Pa.C.S. § 4904 (relating to unsworn falsification to authorities).

42 Pa.C.S. § 102 (emphasis added).3

As such, an affidavit that does not have a signatory is invalid. The question is *219whether using one’s initials rather than a signature on an affidavit, as defined above, is a valid affidavit. It is clear that since an affidavit is an unsworn statement of fact subject to criminal penalties for making false statements to public authorities, the signatory must be prepared to establish that the information meets all legal requirements, should he or she be called upon to do so. In order to do that, the signatory must be readily identifiable from the affidavit itself. Initials simply do not readily identify an individual. Therefore, a posting affidavit that only contains the initials of the person certifying that the property was posted in accordance with the notice provisions of the Law is not a valid affidavit which in turn is insufficient to establish compliance by the Bureau.

In this instance, the Bureau relied upon the posting affidavits as proof that the properties were properly posted. However, as the affidavits were not signed, the unsworn statements of facts contained therein were not verified. Accordingly, the Bureau failed to meet its burden of proving that the properties were posted at least ten days prior to the sale as required by Section 602(e)(3) of the Law. As such, I would reverse the trial court’s orders denying the exceptions to the upset tax sale of the properties because the Bureau failed to prove that it complied with the posting requirements of the Law.

. Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. §§ 5860.602(e)(3).

. It is well settled that even when a property owner receives actual notice of a tax sale, a defect in the posting may nevertheless require a court to overturn a tax sale. The reason for such a result is that the posting of notice serves the function of notifying the general public, as well as the owner, of a tax sale. Tax Sale of Real Property Situate in Paint Township, Somerset County, 865 A.2d 1009 (Pa.Cmwlth.2005). By opening up the sale to the public at large, the taxing authority has a greater opportunity to recover lost tax revenues. In re Upset Price Tax Sale of September 10, 1990, 147 Pa.CmwIth. 52, 606 A.2d 1255 (1992).

.Section 4904 of the Crimes Code, 18 Pa.C.S. § 4904, governs unsworn falsification to authorities and provides as follows:

(a) IN GENERAL. — A person commits a misdemeanor of the second degree if, with intent to mislead a public servant in performing his official function, he:
(1) makes any written false statement which he does not believe to be true;
(2) submits or invites reliance on any writing which he knows to be forged, altered or otherwise lacking in authenticity; or
(3) submits or invites reliance on any sample, specimen, map, boundary mark, or other object which he knows to be false.
*219(b)STATEMENTS “UNDER PENALTY.” — A person commits a misdemeanor of the third degree if he makes a written false statement which he does not believe to be true, on or pursuant to a form bearing notice, authorized by law, to the effect that false statements made therein are punishable.
(c) PERJURY PROVISIONS APPLICABLE. — Section 4902(c) through (f) of this title (relating to perjury) applies to this section.
(d) PENALTY. — In addition to any other penalty that may be imposed, a person convicted under this section shall be sentenced to pay a fine of at least $1,000.