IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: 2021 Erie County Tax Sales :
:
Objections for the Property :
Located at 945 E. 38th St. :
Index No. 18-053-083.0-117.0 :
: No. 1149 C.D. 2022
Appeal of: Clair Bissell : Submitted: October 10, 2023
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: April 18, 2024
Clair Bissell (Bissell) appeals from the Erie County (County) Common
Pleas Court’s (trial court) September 19, 2022 order denying Bissell’s Petition to Set
Aside Tax Sale (Petition).1 Bissell presents two issues for this Court’s review: (1)
whether the County Tax Claim Bureau (Bureau) strictly complied with the mailed
notice provisions of Section 602 of the Pennsylvania Real Estate Tax Sale Law
(RETSL);2 and (2) whether the Bureau strictly complied with the personal service
provisions of Section 601 of the RETSL.3 After review, this Court affirms.
By May 29, 2003 deed, Bissell acquired the property located at 945
East 38th Street, Erie, Pennsylvania (Property), formally owned by his mother. The
Property was previously exposed at the County’s 2018 Upset Tax Sale but was not
1
The trial court entered an Amended Order on September 20, 2022, correcting the address
and County Tax Index Number of the subject property.
2
Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. § 5860.602.
3
72 P.S. § 5860.601.
purchased at that time. Bissell redeemed the Property by paying the 2016, 2017, and
2018 delinquent taxes on November 13, 2020, leaving the 2019 taxes unpaid. The
Property was again exposed at a tax sale after Bissell became delinquent on the 2019
property taxes.
The Bureau began its efforts to sell the Property in March 2020. At that
time, the Bureau sent a Notice of Return and Claim to Bissell at the Property, which
was returned as unclaimed.4 See Reproduced Record (R.R.) at 19a-20a. The Bureau
posted the Notice of Return and Claim on the Property on June 24, 2020, in
compliance with Section 308(a) of the RETSL, 72 P.S. § 5860.308(a). See R.R. at
22a-23a. On July 22, 2021, the United States Postal Service (USPS) delivered the
Notice of Upset Tax Sale to the Property. See R.R. at 24a-25a. The USPS used its
COVID-19 pandemic protocol, which did not require the signature of the person
receiving the certified mail. Rather, the postal carrier was to inquire as to the
person’s name, make notation of the same, and identify the delivery as having been
made in accordance with the USPS COVID-19 protocols, see R.R. at 62a-64a, which
is what occurred in the instant case.5 See R.R. at 25a.
On July 24, 2021, Evelyn Laughlin (Laughlin), a field agent for
Palmetto Posting, Inc. (Palmetto Posting), posted the Notice of Upset Tax Sale on
4
Section 308(a) of the RETSL requires, in pertinent part:
Not later than the thirty-first day of July of each year, the [B]ureau
shall give only one notice of the return of said taxes and the entry of
such claim in one envelope for each delinquent taxable property, by
United States registered mail or United States certified mail, return
receipt requested, postage prepaid, addressed to the owners at the
same address listed on the form returned by the tax collector for
taxes that are delinquent.
72 P.S. § 5860.308(a).
5
Because the Bureau could not obtain a signature, it proceeded to undertake additional
reasonable notification efforts to discover the whereabouts of the Property’s owner (Bissell) as
provided by law. Those additional notification efforts failed to identify any other address for
Bissell. See R.R. at 26a. Indeed, it is undisputed that Bissell resides at the Property.
2
the Property during her attempt at personal service. See R.R. at 29a, 112a-113a.
When no one answered the door, she left the Property. Laughlin made two additional
attempts at personal service, returning to the Property on July 27, 2021, at 9:36 a.m.,
and again on July 28, 2021, at 3:01 p.m. See R.R. at 29a, 113a-115a. Each attempt
at personal service was unsuccessful. See R.R. at 116a-117a. On August 27, 2021,
the Bureau published the Notice of Upset Tax Sale in the Erie Times-News, and the
Erie County Legal Journal. See R.R. at 37a-46a.
On September 14, 2021, the Bureau filed a Petition to Waive Personal
Service based upon its good faith efforts at personal service, which the trial court
granted. See R.R. at 31a-36a. On September 15, 2021, the Bureau mailed the
required 10-day notice by United States first class mail to Bissell at the Property, see
R.R. at 27a-28a, which was not returned as undelivered. See R.R. at 79a-80a. On
September 27, 2021, Little Giraffe 2020, LLC (Little Giraffe), purchased the
Property at the Upset Tax Sale. Little Giraffe recorded its deed on January 27, 2022.
See R.R. at 95a-96a.
On April 27, 2022, Bissell filed the Petition, asserting therein that he
did not receive notice of the September 27, 2021 Upset Tax Sale, and that Palmetto
Posting’s process server was never appointed to do so by a county commissioners’
resolution. The trial court held a hearing on August 5, 2022. On September 19,
2022, the trial court denied Bissell’s Petition. Bissell appealed to this Court.6 The
trial court directed Bissell to file a Statement of Errors Complained of on Appeal
pursuant to Pennsylvania Rule of Appellate Procedure (Rule) 1925(b) (Rule 1925(b)
Statement). On November 14, 2022, Bissell timely filed his Rule 1925(b) Statement.
6
“[This Court’s] review in tax sale cases is limited to determining whether the trial court
abused its discretion, erred as a matter of law, or rendered a decision not supported by substantial
evidence.” In re Balaji Invs., LLC, 148 A.3d 507, 509 n.2 (Pa. Cmwlth. 2016).
3
Bissell first argues that the Bureau did not strictly comply with the
mailed notice provisions of Section 602 of the RETSL. Specifically, Bissell
contends that the Bureau did not offer sufficient evidence to show that it strictly
complied with its requirement to send Bissell notice via USPS certified mail,
restricted delivery. Bissell asserts that the evidence the Bureau presented showed
that USPS did not provide that service because of the COVID-19 pandemic, and that
the Bureau failed to offer evidence which indicated that Bissell received the notice
by certified mail, restricted delivery, even under the modified COVID-19 pandemic
procedures. Bissell cites Kemler v. Lackawanna County Tax Claim Bureau (Pa.
Cmwlth. No. 944 C.D. 2014, filed April 10, 2015), to support his position.7
In Kemler, the only receipt that indicated the owner received notice via
certified mail did not show whether that delivery was restricted. The tax claim
bureau therein did not produce a copy of the notice sent to the owner, which would
have indicated whether the mail was sent restricted delivery. Further, there was no
testimony to indicate whether the delivery was restricted. The Kemler Court held
that the tax claim bureau failed to show that it complied with the notification
requirements, and the trial court erred in concluding that it complied.
In contrast, here, the Bureau presented the notice it sent to the owner
(Bissell), see R.R. at 24a, and the receipt, which stated: “The following is the
delivery information for Certified MailTM/RRE/RD[8] item number 9236 0969 0010
1625 1500 0214 00. Our records indicate that this item was delivered on 07/22/2021
at 12:05 p.m. in Erie, PA 16504. The scanned image of the recipient information is
provided below.” R.R. at 25a. Because the Bureau provided evidence that it sent
7
Unreported decisions of this Court issued after January 15, 2008, may be cited for their
persuasive value but not as binding precedent. See Section 414(a) of the Commonwealth Court’s
Internal Operating Procedures, 210 Pa. Code § 69.414(a).
8
RRE stands for Return Receipt Electronically, and RD stands for Restricted Delivery.
See https://faq.usps.com./s/article/Certified-Mail-The-Basics (last visited Apr. 17, 2024).
4
the notice to Bissell by certified mail, restricted delivery, return receipt requested,
Kemler is inapposite.
Section 602(e) of the RETSL, which contains the mailed notice
requirements, provides, in relevant part:
In addition to such publications, similar notice of the sale
shall also be given by the [B]ureau 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 [the RETSL].
(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 [B]ureau, by the tax collector for the
taxing district making the return and by the county office
responsible for assessments and revisions of taxes. It
shall be the duty of the [B]ureau to determine the last
post office address known to said collector and county
assessment office.
72 P.S. § 5860.602(e) (emphasis added).
Here, as the trial court explained:
[The Bureau] acknowledge[d] that due to the [USPS]
COVID-19 protocols, the signature of the recipient was
not collected. As no signature was collected, the [Bureau]
undertook additional reasonable notification efforts. After
finding no additional mailing addresses for [Bissell], [the
Bureau] mailed a [10-]day notice letter by first class mail
on September 15, 2021, to the [] [P]roperty. The letter was
not returned as undeliverable.
Trial Ct. 9/19/2022 Op. at 2. Pursuant to Section 602(e) of the RETSL, the Bureau
sent the notice to Bissell certified mail, restricted delivery, return receipt requested,
5
and when a signature was not collected, it gave similar notice by United States first
class mail, see R.R. at 27a, and provided proof of mailing. See R.R. at 28a.
Accordingly, the Bureau complied with Section 602(e) of the RETSL’s mailed
notice provisions.
Bissell next argues that the Bureau did not strictly comply with the
personal service provisions of Section 601 of the RETSL. Specifically, Bissell
contends that the individual who attempted personal service was not properly
appointed to attempt such service because Palmetto Posting was not appointed by
resolution. The Bureau rejoins that the Erie County Home Rule Charter grants the
appointing authority to the County Executive. The Bureau further retorts that
notwithstanding, the field agent was not successful in personally serving Bissell,
thus the personal service requirement was subsequently waived upon the Bureau’s
Petition to Waive Personal Service, which the trial court granted.
Section 601(a)(3) of the RETSL, which contains the personal service
requirements, provides:
No owner-occupied property may be sold unless the
[B]ureau has given the owner occupant written notice of
such sale at least ten (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 [B]ureau, or the persons appointed by the
county commissioners in lieu of the sheriff or his deputy
shall file with the [B]ureau 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 (25) days of the request by the [B]ureau to
make such personal service, the [B]ureau may petition
the court of common pleas to waive the requirement of
personal notice for good cause shown. Personal service
6
of notice on one of the owners shall be deemed personal
service on all owners.
72 P.S. § 5860.601(a)(3) (emphasis added).
Here, Bissell averred in his Petition: “The Bureau failed to strictly
comply with the notice provisions of the [RETSL] that, at a minimum, the Bureau
failed to provide personal service as required by the [RETSL] because the Bureau
utilized [a] ‘designated server’ who was not authorized to provide service under the
[RETSL].”9 R.R. at 3a. Bissell further stated: “A [c]ourt considering a challenge to
notice in a tax sale case is not bound by a prior waiver of personal service.10
Falmageltto v. [County of] Erie Tax Claim Bureau, 133 A.3d [337,] 349 [(Pa.
Cmwlth. 2016)].” R.R. at 3a.
In Falmageltto, the appellants argued, inter alia, that the waiver petition
therein did not satisfy the good cause requirement of Section 601(a)(3) of the
RETSL. The Bureau and purchaser retorted that the Bureau complied with the
requirements to obtain such a waiver and appellants were not home when the
designated server attempted to effectuate personal service. The purchaser also
asserted that the trial court was correct to not second guess the trial court judge’s
decision to grant the Bureau’s waiver petition under the coordinate jurisdiction
doctrine.
9
The Dissent insists that “Bissell has explicitly challenged the trial court’s grant of a waiver
for lack of good cause shown, on substantive grounds as well as the lack of an authorized
appointment of a server to replace the sheriff.” In re 2021 Erie Cnty. Tax Sale (Pa. Cmwlth. No.
1149 C.D. 2022, filed Apr. 18, 2024) (Leavitt, S.J., dissenting), slip op. at 3-4. However, Bissell
only challenged the “Bureau[’s] fail[ure] to strictly comply with the notice provisions of the
[RETSL] . . . .” R.R. at 3a. Bissell did not aver that the trial court did not have good cause to
grant the waiver, and such an argument cannot be inferred. These are two separate and distinct
issues.
10
Contrary to the Dissent’s contention, although Bissell states that a court is not bound by
a prior waiver, he does not challenge the grant of the waiver in the instant case.
7
The Falmageltto Court explained:
[T]he General Assembly understood that, in certain
circumstances, tax claim bureaus should not be required to
incur the high costs associated with ensuring that notice
was received by each owner-occupant personally and
included a provision within Section 601(a)(3) of the
[RETSL] allowing the personal service of notice
requirement to be waived for “good cause shown.” The
General Assembly decided to place a burden on the taxing
bureaus to provide justification for a waiver and to give
trial courts the task of balancing the goal of providing
heightened notice to owner-occupants against the taxing
bureaus’ obligations to collect property taxes. See In Re:
Consolidated Reports . . . ([Appeal of] Neff), 132 A.3d
637, 650 (Pa. Cmwlth. 2016) (en banc)[] (reasoning that
whether good cause under Section 601(a)(3) of the
[RETSL] exists is a matter left to the trial court’s sound
discretion and requires trial courts to “consider[ ] the facts
of this case in light of the fundamental purposes of the
[RETSL]”).
Falmageltto, 133 A.3d at 347.
The Falmageltto Court expounded:
The trial court here did not independently examine
whether the Bureau showed good cause to waive the
personal service of notice requirement under Section
601(a)(3) of the [RETSL]. Instead, the trial court found
that it was not its role to second guess or overrule Judge
Cunningham’s ruling as it [was] binding on [the trial
c]ourt under the coordinate jurisdiction doctrine. Whether
a trial court is obligated to uphold, on the basis of the
coordinate jurisdiction doctrine, an earlier order waiving
personal service of notice pursuant to Section 601(a)(3) of
the [RETSL] is a matter of first impression for this Court.
Falmageltto, 133 A.3d at 347 (quotation marks and internal record citation omitted).
The Falmageltto Court held that since ruling on a waiver petition is a
one-sided process, and once a property owner challenges the tax sale, there is an
8
opportunity for him to test whether the heightened requirements for notice to owner-
occupants were in fact met,
[a] second judge can be presented with additional and
different evidence from both parties regarding the tax
claim bureau’s efforts to comply with the [RETSL’s]
personal service of notice requirement, the second judge is
not deciding the same questions as the first judge and the
coordinate jurisdiction doctrine should not apply.
Therefore, because the coordinate jurisdiction rule did not
preclude the trial court from considering whether the
Bureau satisfied the good cause shown requirement of
Section 601(a)(3) of the [RETSL] based on the evidence,
testimony, and arguments made by the parties in this
matter, [this Court] reverse[s] the trial court’s [o]rder and
remand[s] for the trial court to make this determination
based on the record evidence.
Falmageltto, 133 A.3d at 349 (footnote omitted). Here, because Bissell is not
arguing that the waiver petition did not satisfy the good cause requirement of Section
601(a)(3) of the RETSL, and he did not argue that before the trial court, Falmageltto
is inapposite.
Rather, in his Rule 1925(b) Statement, Bissell presented four issues:
1. The trial court’s finding that the [Bureau] met its
notification burden was not supported by sufficient
evidence.
2. The trial court erred, as a matter of law, when it ruled
that the Bureau complied with the statutory notice
requirements applicable to tax sale cases, including the
requirement of personal service.
3. The trial court erred, as a matter of law, when it ruled
that the [] County Executive has the authority, via
administrative powers, to appoint the employees of
Palmetto Posting to make personal service.
9
4.The trial court erred, as a matter of law, when it found
that [] Bissell’s due process rights were not violated by the
tax sale.
Rule 1925(b) Statement at 1. Nowhere in the Rule 1925(b) Statement does Bissell
assert that the trial court did not have good cause to grant the Bureau’s Petition to
Waive Personal Service.
In addition, in his brief, Bissell sets forth the issue in his Statement of
Questions Involved as: “Whether the . . . Bureau strictly complied with the personal
service provisions of Section 601 of the [RETSL.]”11 Bissell Br. at 2. Specifically,
Bissell argues that notwithstanding that personal service was waived for good cause
shown, the tax sale should be set aside because the designated server was not
appointed by a county commissioners’ resolution as Section 601(a)(3) of the RETSL
requires. However, as explained in Appeal of Neff, waiver of personal service and
whether personal service was proper are two separate and distinct issues.
In Appeal of Neff, the tax claim bureau filed a waiver petition in the trial
court seeking to waive personal service of notice of an upset tax sale to the objector
and other owner-occupants of properties whose homes were scheduled to be sold at
an upset tax sale. The waiver petition averred that the tax claim bureau attempted to
personally serve notice by Palmetto Posting, the designated server, on all owners of
owner-occupied property subject to the upset tax sale, and that at least three separate
attempts had been made by the designated server on each property. The waiver
petition also averred that all of the other RETSL notice requirements were
accomplished for each property. The stated justification for the waiver was that
denying the request would render the tax claim bureau unable to offer the properties
for public tax sale on the specified date. A document attached to the waiver petition
11
Contrary to the Dissent’s assertion, this issue does not encompass a challenge to the trial
court’s grant of a waiver for lack of good cause shown. These are two separate and distinct issues.
10
reflected that personal service was attempted for the objector’s property on August
5, 2013, at 1:21 p.m.; August 8, 2013, at 4:13 p.m.; and August 9, 2013, at 9:19 a.m.
The trial court granted the tax claim bureau’s waiver petition on the same day it was
filed.
The objector timely filed objections and exceptions to the upset tax sale
of her property. Therein, the objector alleged that the tax claim bureau sold her
property at the upset tax sale in violation of her due process rights and the RETSL’s
notice requirements. The trial court overruled the objector’s objections and
exceptions, and confirmed the sale absolutely because the objector received actual
notice. On appeal to this Court, the objector first argued that the upset tax sale of
her property must be set aside because the tax claim bureau did not strictly comply
with all of the notice requirements of the RETSL and afford her due process. In
particular, the objector argued, inter alia, that the tax claim bureau did not personally
serve her with notice of the upset tax sale of her home as required by Section
601(a)(3) of the RETSL, and that the trial court erred by granting the tax claim
bureau a waiver of the notice by personal service requirement. The objector
specifically contended that the tax claim bureau did not establish good cause for the
waiver.
The Appeal of Neff Court explained:
The primary purpose of tax sale laws is to ensure “the
collection of taxes, and not to strip away citizens’ property
rights.” Rice [v. Compro Distrib., Inc.], 901 A.2d [570,]
575 [(Pa. Cmwlth. 2006)]. Our Supreme Court has said
that tax sale laws “were never meant to punish taxpayers
who omitted through oversight or error (from which the
best of us are never exempt) to pay their taxes.” In re
Return of Sale of Tax Claim Bureau (Ross Appeal), . . . 76
A.2d 749, 753 ([Pa.] 1950). Instead, tax sale laws are
“meant to protect the local government against wilful [sic],
persistent, long[-]standing delinquents for whom we hold
no brief, and to whom the appellate court decisions have
11
consistently given short shrift.” Id. Because the purpose
of the [RETSL] is to protect local governments from
delinquent taxpayers, failed attempts at personal service of
notice may be, depending on the specific facts in the case,
legally sufficient to obtain a waiver under Section
601(a)(3) of the [RETSL].
We conclude here that the trial court did not abuse its
discretion by granting the [b]ureau’s [w]aiver [p]etition.
The [w]aiver [p]etition averred that the [b]ureau attempted
to personally serve [the o]bjector on three different days at
three different times of the day and that it satisfied the
other notice requirements of Section 602 of the [RETSL].
Attached to the [w]aiver [p]etition was a document
developed by Palmetto Posting stating that [the designated
server] attempted personal service three times and listed
the times and dates of each attempt. The trial court,
cognizant that someone’s home was at stake, that the
purpose of the [RETSL] is to protect local governments
from persistent tax delinquents, that the [b]ureau attested
to the fact that it satisfied the notice requirements of
Section 602 of the [RETSL], and attempted personal
service three times at three different times of the day,
utilized its discretion to determine that personal service of
notice should be waived. The trial court did not abuse its
discretion.
Appeal of Neff, 132 A.3d at 650-51.
The objector also argued to this Court, inter alia, that the tax claim
bureau violated the strict requirements of Section 601(a)(3) of the RETSL by
attempting personal service of notice by a designated server, Palmetto Posting,
which was not authorized to provide such service by the RETSL.12 The Appeal of
Neff Court ruled:
Section 601(a)(3) [of the RETSL] requires that personal
service of notice of the tax sale be given “by the sheriff or
his deputy or person deputized by the sheriff for this
12
The Dissent maintains that the Majority did not address Bissell’s argument that Palmetto
Posting was not qualified to effectuate personal service on owner/occupants. However, as
explained below, because Bissell waived this argument by not challenging the trial court’s granting
of a waiver for good cause, this issue is not before this Court. See Appeal of Neff.
12
purpose unless the county commissioners, by resolution,
appoint a person or persons to make all personal services
required by this clause.” 72 P.S. § 5860.601(a)(3).
Section 601(a)(3) [of the RETSL] also states, however,
that “[i]f such personal notice cannot be served within
twenty-five (25) days . . . , the bureau may petition the
court of common pleas to waive the requirement of
personal notice for good cause shown.” 72 P.S. §
5860.601(a)(3) (emphasis added). When interpreting a
statute, we must presume that the General Assembly
intended every word to have effect. Bilka v. Dep[’]t of
Transp[.], Bureau of Driver Licensing, 92 A.3d 1253,
1258 (Pa. Cmwlth. 2014). By including the phrase “such
personal service” and not limiting the waiver authorization
to the inability to make service, the General Assembly
intended that both requirements of Section 602(a)(3) [of
the RETSL] - that personal service be made[,] and that
service be made by an authorized person - may be waived
by the trial court upon a good cause showing. Because we
concluded supra that the trial court acted within its
discretion to grant the [b]ureau’s [w]aiver [p]etition, we
now conclude that the requirement that notice upon an
owner-occupant via personal service by a sheriff, a
sheriff’s deputy, or an entity approved by the county
commissioners by resolution was properly waived and will
not defeat the tax sale.
Appeal of Neff, 132 A.3d at 652.
Here, as in Appeal of Neff, the Bureau filed a waiver petition with the
trial court seeking to waive personal service of the Notice of Upset Tax Sale to
Bissell and other owner-occupants of property scheduled to have their homes sold
on September 27, 2021. The waiver petition averred that the Bureau attempted to
personally serve notice by the County’s designated server, Palmetto Posting, on all
owners of owner-occupied property subject to the upset tax sale and that at least
three separate attempts had been made over a minimum of two different days at
different times of the day by the designated server on each property. See R.R. at
31a. The waiver petition also averred that all other notice requirements of the
RETSL were accomplished for each property. See R.R. at 33a. The trial court
13
granted the Bureau’s waiver petition. As stated above, Laughlin testified that she
attempted personal service for the Property on July 24, 2021, at 4:01 p.m.; July 27,
2021, at 9:36 a.m., see R.R. at 113a; and July 28, 2021, at 3:01 p.m. See R.R. at
115a.
Unlike the objector in Appeal of Neff, Bissell did not aver in his Petition
or argue to this Court that the trial court did not have good cause to grant the waiver
petition. Further, Bissell has not refuted the evidence the Bureau presented to show
good cause. Nonetheless, this Court concludes here that the trial court did not abuse
its discretion by granting the Bureau’s waiver petition.
The trial court, cognizant that someone’s home was at
stake, that the purpose of the [RETSL] is to protect local
governments from persistent tax delinquents, that the
Bureau attested to the fact that it satisfied the notice
requirements of Section 602 of the [RETSL], and [at least
three separate attempts at personal service had been made
over a minimum of two different days at different times of
the day by the designated server on each property, which
Laughlin testified thereto], utilized its discretion to
determine that personal service of notice should be
waived. The trial court did not abuse its discretion.
Appeal of Neff, 132 A.3d at 651.
Like the objector in Appeal of Neff, Bissell argues that the Bureau
violated the strict requirements of Section 601(a)(3) of the RETSL by attempting
personal service of notice by a designated server, Palmetto Posting, who was not
authorized to provide such service by the RETSL.
Because [this Court] concluded [] that the trial court acted
within its discretion to grant the Bureau’s [w]aiver
[p]etition, [this Court] now conclude[s] that the
requirement that notice upon an owner-occupant via
personal service by a sheriff, a sheriff’s deputy, or an
14
entity approved by the county commissioners by
resolution was properly waived[.][13]
Appeal of Neff, 132 A.3d at 652 (emphasis added). Accordingly, even if Palmetto
Posting was not authorized to provide such service by the RETSL,14 “it will not
defeat the tax sale.” Id.
For all of the above reasons, the trial court’s order is affirmed.15
_________________________________
ANNE E. COVEY, Judge
13
The Dissent in Appeal of Neff maintained:
The trial court’s grant of the waiver was also erroneous because the
[t]ax [c]laim [b]ureau’s “server designee” was not qualified to make
or attempt personal service. Neither Palmetto Posting[] nor its
employee . . . was deputized by the Northumberland County Sheriff
or appointed by the Northumberland County Commissioners to
make personal service. The [M]ajority agrees with the purchaser’s
tautological argument that the server’s qualification does not matter
because personal service can be waived.
Appeal of Neff, 132 A.3d at 657 (Leavitt, J., dissenting). However, the Majority in Appeal of Neff
did not hold that the server’s qualification does not matter because personal service can be
waived. Rather, as explained supra, it is irrelevant whether Palmetto Posting was authorized
because personal service was waived.
14
The trial court determined that Palmetto Posting was authorized by the RETSL because
the County is ruled by a Home Rule Charter which grants the County Executive appointing
authority, and the County Executive appointed Palmetto Posting to be the Bureau’s designated
server.
15
This Court may affirm a trial court based on a differing rationale.
See Slusser v. Black Creek Twp. Zoning Hearing Bd., 124 A.3d 771,
772 (Pa. Cmwlth. 2015) (stating this Court may affirm the decision
of the trial court on any grounds); see also FP Willow Ridge Assocs.,
L.P. v. Allen Twp., 166 A.3d 487, 496 (Pa. Cmwlth. 2017) . . .
(stating this Court may affirm on other grounds where grounds for
affirmance exist).
Medina v. Harrisburg Sch. Dist., 273 A.3d 33, 35 n.1 (Pa. Cmwlth. 2022).
15
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: 2021 Erie County Tax Sales :
:
Objections for the Property :
Located at 945 E. 38th St. :
Index No. 18-053-083.0-117.0 :
: No. 1149 C.D. 2022
Appeal of: Clair Bissell :
ORDER
AND NOW, this 18th day of April, 2024, the Erie County Common
Pleas Court’s September 19, 2022 order is affirmed.
_________________________________
ANNE E. COVEY, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: 2021 Erie County Tax Sales :
:
Objections for the Property :
Located at 945 E. 38th St. :
Index No. 18-053-083.0-117.0 :
: No. 1149 C.D. 2022
Appeal of: Clair Bissell : Submitted: October 10, 2023
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION NOT REPORTED
DISSENTING OPINION
BY SENIOR JUDGE LEAVITT FILED: April 18, 2024
Clair Bissell did not receive personal service of a written notice that his
home was listed for tax sale. Because the Erie County Tax Claim Bureau (Tax Claim
Bureau) obtained a waiver of its obligation to effect this personal service on Bissell,
the majority holds that he cannot challenge the validity of that waiver in his appeal
to this Court. Respectfully, I dissent.
In any petition to set aside a tax sale, the tax claim bureau must prove
compliance with all the notice requirements of the Real Estate Tax Sale Law (Tax
Sale Law),1 including the requirement to effect personal service of the tax sale notice
upon the owner of an owner-occupied property. Famageltto v. County of Erie Tax
Claim Bureau, 133 A.3d 337, 348 (Pa. Cmwlth. 2016) (filing of exceptions to a tax
sale rebuts the presumption of regularity, putting the initial burden on the tax claim
bureau to show that it strictly complied with the notice requirements of the Tax Sale
Law); Smith v. Tax Claim Bureau of Pike County, 834 A.2d 1247, 1252 (Pa. Cmwlth.
1
Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. §§5860.101-5860.803.
2003) (tax claim bureau must strictly comply with the notice requirements in the Tax
Sale Law). A tax claim bureau may obtain a waiver of the requirement to make
personal service, but there is no presumption that the waiver was validly granted in
a subsequent proceeding to set aside the tax sale. In Gutierrez v. Washington County
Tax Claim Bureau, 260 A.3d 291, 297-98 (Pa. Cmwlth. 2021), we held that where
the waiver of the personal service requirement is improvidently granted, the tax
claim bureau has not complied with the statutory notice requirements of the Tax Sale
Law.
Here, Bissell challenged the waiver for the stated reason that personal
service can only be made, or attempted, 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.” Section 601(a)(3) of the Tax Sale Law, 72 P.S. §5860.601(a)(3) (emphasis
added). The party appointed to make the required personal service on Bissell was
Palmetto Posting, Inc., but it was not appointed by resolution of the Erie County
Council. Rather, as the Erie County Court of Common Pleas (trial court) found,
Palmetto Posting was appointed by the County Executive.2 Bissell challenges the
2
The trial court stated:
[Bissell] also asserts that Palmetto Posting’s agent was not authorized to provide
service under the Tax Sale Law. The Court finds that the County Executive has the
authority, via administrative powers, to appoint the employees of Palmetto Posting
to post delinquent tax notices as well as to make personal service upon property
owners.
Trial Court Op., 9/19/2022, at 2. A resolution is a legislative action that can only be made by the
County Council. See generally McGinley v. Scott, 164 A.2d 424, 430 (Pa. 1960) (“A ‘resolution’
. . . has been defined as ‘A formal expression of the opinion or will of an official body or a public
assembly, adopted by vote; as a legislative resolution.’”). The trial court erred in concluding that
the County Executive had the authority to exercise a legislative function committed to the County
Council.
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trial court’s conclusion that the appointment was lawful and, thus, that issue is before
this Court in Bissell’s appeal. See, e.g., Barbour-Knight v. Civil Service Commission
of City of Philadelphia, 703 A.2d 572, 576 (Pa. Cmwlth. 1997) (appellate review
available on any issue addressed by trial court).
Under the Tax Sale Law, a court may grant a waiver of the tax claim
bureau’s obligation to effect personal service on the owner/occupant where “such
personal service cannot be served within twenty-five (25) days of the request by the
bureau to make such personal service . . . .” Section 601(a)(3) of the Tax Sale Law,
72 P.S. §5860.601(a)(3) (emphasis added). “Such personal service” is service
undertaken by a sheriff, a deputy, or a person appointed by resolution of the Erie
County Council. Id. Here, the Tax Claim Bureau never submitted the request for
personal service to a person qualified to effect “such personal service” upon Bissell
and others. Id. Therefore, the trial court lacked good cause to grant the Tax Claim
Bureau’s request for a waiver of personal service, which renders the sale of Bissell’s
home a nullity.
The majority characterizes Bissell’s argument as conceding that the
Tax Claim Bureau showed good cause for a waiver of personal service. In Re: 2021
Erie County Tax Sales (Pa. Cmwlth., No. 1149 C.D. 2022, filed April 18, 2024), slip
op. at 9. Bissell makes no such concession. To the contrary, Bissell specifically
states that “it did not appear that the [trial] court found good cause to waive the
requirement that service be completed by a person properly authorized.” Bissell
Brief at 8. Further, Bissell states that “[i]t is unclear whether the [trial] court relied
on [the] prior waiver, or whether the [trial] court found the evidence presented at the
hearing on Bissell’s objections established good cause to waive the personal service
requirement.” Id. at 19. In short, Bissell has explicitly challenged the trial court’s
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grant of a waiver for lack of good cause shown, on substantive grounds as well as
the lack of an authorized appointment of a server to replace the sheriff.
As we have explained, the proceeding on a tax claim bureau’s petition
for a waiver of personal service is “necessarily one-sided” because attempts to serve
the property owner have not been successful. Famageltto, 133 A.3d at 348. The
first, and only, opportunity for the property owner to challenge the grant of the good
cause waiver of personal service is by filing exceptions to the tax sale. Id. That
adversarial proceeding provides the “opportunity to test whether the heightened
requirements for notice to owner-occupants were in fact met.” Id. In the tax sale
exception proceeding, the tax claim bureau has the burden to prove it complied with
all of the Tax Sale Law’s notice requirements, including personal service. Id.
Challenges to the qualifications of the appointed server “may be addressed in
conjunction with a property owner’s other challenges to the tax claim bureau’s notice
efforts.” Id. at 349 n.17. The grant of a waiver of personal service to the tax claim
bureau does not operate as res judicata in the proceeding that challenges the tax sale.
The majority does not address Bissell’s argument that Palmetto Posting,
Inc. was not qualified to do personal service on owner-occupants. In Re: 2021 Erie
County Tax Sales, slip op. at 11 n.12. However, good cause encompasses an
examination of both the qualifications of the person attempting personal service and
the substantive merits of that person’s claim that it made a good faith effort to effect
personal service.3 Because the Tax Claim Bureau did not use a person authorized to
3
Here, Palmetto Posting, Inc. offered affidavits that it made three attempts to serve the owner at
his home during the workday, times when he was not likely to be there. See In Re Consolidated
Reports and Returns by Tax Claims Bureau of Northumberland County of Properties, 132 A.3d
637, 656 (Pa. Cmwlth. 2016) (Appeal of Neff) (Leavitt, J., dissenting) (noting that attempting
personal service at the owner’s home only at times he is not likely to be there did not constitute
good cause for a waiver, and the trial court erred in otherwise holding).
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make personal service, it did not satisfy the requirements of Section 601(a)(3) of the
Tax Sale Law, and the trial court erred in holding otherwise.
For these reasons, I would reverse the trial court.
______________________________________________
MARY HANNAH LEAVITT, President Judge Emerita
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