           IN THE COMMONWEALTH COURT OF PENNSYLVANIA



In Re: Dauphin County Tax                    :
Sale of 2013                                 :    No. 2306 C.D. 2014
                                             :
Appeal of: Samuel M. Hester                  :    Argued: September 17, 2015



BEFORE:       HONORABLE DAN PELLEGRINI, President Judge1
              HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE P. KEVIN BROBSON, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE COHN JUBELIRER                                   FILED: January 8, 2016


       Samuel M. Hester (Objector), Administrator of the estates of Evelyn
Anderson and Gail Anderson, appeals from a December 2, 2014 Order of the Court
of Common Pleas of Dauphin County (trial court) denying Objector’s Objections
and Exceptions to the September 16, 2013 upset tax sale of 2401 Thornton Road,
Harrisburg, Pennsylvania (Property). On appeal, Objector argues that the trial
court erred by not setting aside the upset tax sale because the Dauphin County Tax
Claim Bureau (Bureau) did not sustain its burden to show that it strictly complied




       1
        This case was assigned to the opinion writer before December 31, 2015, when President
Judge Pellegrini assumed the status of senior judge.
with multiple notice provisions of the Real Estate Tax Sale Law2 (Law).
Discerning no error, we affirm.


   I.         Background
        The following facts are not in dispute. The record owners of the Property
are George and Evelyn Anderson, husband and wife. George Anderson died in
1988 and Evelyn Anderson died in 2005. Evelyn Anderson was survived by her
daughter Gail, who was unmarried, had no issue, and suffered from disabilities.
Upon Evelyn’s death, Objector, Evelyn’s first cousin, was named Administrator of
her estate. (Letters of Administration for Evelyn Anderson, Objector’s Hr’g Ex. 1,
R.R. at 72a.) Gail Anderson died on January 2, 2010 and Objector was named
Administrator of her estate on September 4, 2012. (Letters of Administration for
Gail Anderson, Objector’s Hr’g Ex. 3, R.R. at 76a.)


        Property taxes on the Property for tax year 2011 remained unpaid and the
Bureau sent a notice dated April 17, 2012 via certified mail to George and Evelyn
Anderson at the Property notifying the couple of the delinquency and the claim
against them. The notice was signed for by Objector on April 25, 2012. (Notice of
Return and Claim (Claim Notice), Bureau’s Hr’g Ex. 1, R.R. at 47a.) The Bureau
then sent George and Evelyn Anderson a notice dated July 11, 2013 via certified
mail, restricted delivery, return receipt requested, stating that “your property is
about to be sold without your consent for delinquent taxes” and that the Bureau
will expose properties to an upset tax sale on September 16, 2013. (Sale Notice,
Bureau’s Hr’g Ex. 2, R.R. at 48a-49a.) After multiple attempts to deliver notice to

        2
            Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. §§ 5860.101-5860.803.

                                                 2
George and Evelyn Anderson, the notice was returned to the Bureau unclaimed.
(Sale Notice, Bureau’s Hr’g Ex. 2, R.R. at 50a.) The Bureau sent a second sale
notice to George and Evelyn Anderson via first class mail on August 28, 2013.
(Proof of Mailing, Bureau’s Hr’g Ex. 8, R.R. at 63a, 66a.)


       The Bureau proceeded to publish notice of the sale in the Middletown Press
and Journal, The Patriot News, and The Dauphin County Reporter. (Bureau’s
Hr’g Exs. 3-5, R.R. at 52a-56a.)            Further, the Bureau proffered a document,
admitted into the record as a business record, over Objector’s hearsay objection,
which showed that Valerie McDowell of Palmetto Posting, the Bureau’s posting
agent, physically posted the Property on August 16, 2013 by placing a notice on
the door.3 (Field Report, Bureau’s Hr’g Ex. 6, R.R. at 57a.)


       The Property was sold as scheduled on September 16, 2013 to Statewide
Enterprises, LLC and its principal, Philip J. Dobson (Purchaser). The Bureau then
sent George and Evelyn Anderson notice, dated September 20, 2013, via certified
mail that the Property was sold. (Notice of Property Sold, Bureau’s Hr’g Ex. 9,
R.R. at 68a.) The notice was signed for by Objector on September 27, 2013.
(Notice of Property Sold, Bureau’s Hr’g Ex. 9, R.R. at 67a.)

       3
          Because the Bureau thought that George and Evelyn Anderson still lived at the
Property, it undertook efforts to comply with the statutory notice requirements applicable to
owner-occupied properties and attempted to personally serve notice upon the Andersons. Ms.
McDowell served the dual role of posting the property and attempting personal service. Ms.
McDowell attempted personal service three times: August 16, 2013 at 10:30 AM; August 17,
2013 at 12:12 PM; and August 19, 2013 at 5:48 PM. (Field Report, Bureau’s Hr’g Ex. 6, R.R. at
58a.) Having failed to personally serve the Andersons with notice, the Bureau petitioned the trial
court to waive personal service, which was granted on September 13, 2013. (Order, September
13, 2013, Bureau’s Hr’g Ex. 7, R.R. at 60a.)

                                                3
       Objector timely filed Objections and Exceptions to the tax sale on November
1, 2013. (Objections and Exceptions, R.R. at 14a-16a.) Purchaser filed a Petition
to Intervene with the trial court on February 11, 2014. (Petition of Philip J.
Dobson and Statewide Enterprises, LLC to Intervene as Defendants/Respondents,
C.R. at Item 17.) The trial court held a hearing on the matter on August 6, 2014.
At the start of the hearing, the trial court granted Purchaser’s Petition to Intervene.
(Hr’g Tr. at 5, R.R. at 31a.) The trial court then heard testimony on the merits of
the Objections and Exceptions.


       The Bureau presented the testimony of Holly Martz, Deputy Director of the
Bureau. Ms. Martz testified as follows.4 Ms. Martz serves as the custodian of the
Bureau’s records and all exhibits entered into the record by the Bureau are
regularly kept in the course of business. The Bureau thought George and Evelyn
Anderson were still alive at the time it was providing notice of the pending upset
tax sale. The Bureau took no action to inquire into Objector’s identity after it
received the return receipt from the April 17, 2012 Claim Notice signed by
Objector. When the July 11, 2013 Sale Notice was returned unclaimed, the Bureau
conducted a search for alternative addresses for George and Evelyn Anderson.
Handwritten notations on the top right hand corner of the return receipt by Bureau
staff reveal that, upon receiving the return receipt, Bureau staff searched its
internal tax assessment software, Dove Net, to see if George and Evelyn moved or
if the couple owned other property in Dauphin County. Bureau staff also went
online and checked the White Pages to see if there was a change of address on

       4
        Ms. Martz’s testimony at the August 6, 2014 hearing is found at pages 31a-37a of the
reproduced record.

                                             4
record. No alternative addresses were found. At no point did the Bureau staff
check the Register of Wills to ascertain whether George and Evelyn Anderson
were deceased.


      Objector testified as follows.5 Objector paid the property taxes for the
Property between 2005 and 2010 out of an account owned by the estate of Evelyn
Anderson. At the time of the hearing, neither of the estates of Evelyn Anderson
nor Gail Anderson had been fully administered.             Objector thought he could
administer the estates himself, but it proved too difficult and he eventually hired an
attorney.


      Upon Evelyn Anderson’s death, Objector took up residence at the Property
to care for Gail Anderson. Objector moved to his current residence in Steelton,
Pennsylvania upon Gail’s death in 2010, though he still maintained the Property,
kept personal items at the Property, and received mail at both the Property and his
Steelton residence. Objector never informed the postal authorities that Evelyn
Anderson’s mail should be sent to Objector at his residence in Steelton,
Pennsylvania and never formally alerted the Bureau that he was the Administrator
of the estate of Evelyn Anderson, though he believes that he told a representative
of a taxing authority that he was the Administrator when he was paying property
taxes at some point prior to 2010. The Property was vacant after Gail Anderson’s
death and Objector never saw notice of a pending upset tax sale posted on the
Property.

      5
        Objector’s testimony at the August 6, 2014 hearing is found at pages 37a-43a of the
reproduced record.

                                            5
      Objector never received the mailed notices that a sale of the Property was
scheduled. He did receive certified mail for the Andersons at the post office,
including the April 17, 2012 Claim Notice and the September 20, 2013 Notice of
Property Sold, but the postal authorities would not always allow Objector to
receive certified mail sent to Evelyn Anderson. Notwithstanding the lack of notice
of the tax sale, Objector knew that taxes for tax year 2011 were delinquent and
intended to pay the taxes out of the proceeds from the sale of his current home in
Steelton, Pennsylvania.


       The trial court issued an Order on December 2, 2014 dismissing the
Objections and Exceptions and validating the sale. The trial court explained the
basis of its Order in an Opinion pursuant to Rule 1925(a) of the Pennsylvania
Rules of Appellate Procedure on March 3, 2015. According to the trial court:

      First, the [Bureau] sent a notice of delinquent tax status by certified
      mail to the property in question, which was received and signed for by
      [Objector]. Next, the [Bureau] sent a notice of the tax sale on July 11,
      2013, requiring a signature, which was returned by the post office.
      The [Bureau] followed up by sending another notice of the sale on
      August 28, 2013; this mailing was not returned by the post office.
      The [Bureau] took reasonable efforts to personally notify the
      landowner when the certified notice was not signed. [Ms.] Martz
      testified that in searching for the whereabouts of an addressee, the
      [Bureau] verifies ownership, checks prior records, and searches
      telephone books, and utilizes specialized software to aid in this effort.
      Pursuant to the [Law], the [Bureau] was issued a waiver of the
      requirement of personal notice. Additionally, on August 13, 2013, the
      [Bureau], through their posting company, posted the property in
      question . . . [and] published notice of the pending sale of the property
      in the Dauphin County [Reporter], The Middletown Press [and]
      Journal, and The Patriot News. It is also significant that [Objector]
      received and signed for the September 27, 2013 notice that the sale of
      the property had occurred earlier that month, on September 1[6],
      2013.
                                         6
                 In light of the foregoing, the [Bureau] was not required to
          undertake additional notification efforts. . . . Based on this Court’s
          credibility determinations, and drawing reasonable inferences from
          the testimony presented at the hearing, this Court finds that sufficient
          evidence was presented to support the conclusion that the applicable
          notice requirements were complied with in such a fashion to afford
          that [Objector] had actual knowledge and due process was served.
          The tax sale of the property in question should be upheld.

(Trial Ct. Op. at 5-6.) This appeal followed.6 On appeal, Objector argues that the
Bureau did not meet its burden to prove that all the notice requirements of the Law
were satisfied and that he did not have actual notice of the tax sale.7

    II.       Compliance with the Notice Requirements of the Law
          “[T]he forfeiture of a person’s property rights for failure to pay taxes is a
momentous event under the Pennsylvania and United States Constitutions.”
Stanford-Gale v. Tax Claim Bureau of Susquehanna County, 816 A.2d 1214, 1216
(Pa. Cmwlth. 2003). “Due process requires that the Bureau, before commencing

          6
          Our “review is limited to determining whether the trial court abused its discretion,
clearly erred as a matter of law or rendered a decision with a lack of supporting evidence.” Rice
v. Compro Distributing, Inc., 901 A.2d 570, 574 (Pa. Cmwlth. 2006).

          7
          Objector raises two additional arguments in order to preserve the issues for a possible
appeal to the Supreme Court. These issues include: (1) that the Property sold for an inadequate
price; and (2) that the trial court erred by allowing Purchaser to intervene in this matter.
Objector acknowledges that this Court’s precedent requires us to conclude that the inadequacy of
the bid price is not a basis to set aside a tax sale and that the trial court has the discretion to allow
successful bidders at a tax sale to intervene in defense of objections and exceptions to an upset
tax sale. See In re 2005 Sale of Real Estate by Clinton County Tax Claim Bureau Delinquent
Taxes, 915 A.2d 719, 723 (Pa. Cmwlth. 2007) (concluding that a successful bidder is a not a
party, as a matter of course, to a proceeding on objections and exceptions, but that it is within the
discretionary powers of a trial court to allow successful bidders to defend the validity of a tax
sale); Povlow v. Brown, 315 A.2d 375, 377 (Pa. Cmwlth. 1974) (holding that it is not within a
trial court’s power to set aside an upset tax sale based “solely on the ground of the inadequacy of
price”). Because Objector is correct that his arguments lack merit under our precedent, we shall
not address these issues any further.

                                                   7
with a tax sale, ‘provide notice reasonably calculated, under all the circumstances,
to apprise interested parties of the pendency of the act and afford them an
opportunity to present their objections.’” Rice v. Compro Distributing, Inc., 901
A.2d 570, 574 (Pa. Cmwlth. 2006) (quoting Mullane v. Central Hanover Bank and
Trust Co., 339 U.S. 306, 314 (1950)).         Accordingly, the General Assembly
established specific requirements in the Law to “guard against deprivation of
property without due process.”      Donofrio v. Northampton County Tax Claim
Bureau, 811 A.2d 1120, 1122 (Pa. Cmwlth. 2002).


      Relevant to this appeal, Section 602 of the Law requires three types of notice
– publication, posting, and sale – and provides 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. Such notice shall set forth (1) the
      purposes of such sale, (2) the time of such sale, (3) the place of such
      sale, (4) the terms of the sale including the approximate upset price,
      (5) the descriptions of the properties to be sold as stated in the claims
      entered and the name of the owner.

      ...

      (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
                                          8
             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, 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 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). In all tax sale cases, the tax claim bureau “has the
burden of proving compliance with the statutory notice provisions.” Krawec v.
Carbon County Tax Claim Bureau, 842 A.2d 520, 523 (Pa. Cmwlth. 2004). “If
any of the three types of notice is defective, the tax sale is void.” Gladstone v.
Federal National Mortgage Association, 819 A.2d 171, 173 (Pa. Cmwlth. 2003).


   A. Evidence of Posting
      Objector first argues that the Bureau did not meet its burden of proving
compliance with the posting requirement of Section 602(e)(3) of the Law. 72 P.S.
§ 5860.602(e)(3). Objector contends that because Ms. McDowell, the Bureau’s
agent who actually posted notice on the Property, did not testify at the hearing, Ms.
McDowell’s Field Report proving posting is inadmissible hearsay.            Objector
argues that because the Bureau did not proffer any admissible evidence proving
that the Property was posted pursuant to Section 602(e)(3) of the Law, the tax sale
should be set aside.


      Purchaser argues in response that the trial court was correct when it ruled
that the “Field Report” created by Ms. McDowell fits within the business record


                                         9
exception to the hearsay rule. Further, Purchaser contends that the Bureau is
entitled to the presumption that it conducts its business in conformance with the
law.


       The Field Report at issue is actually two reports detailing the location of the
Property, the dates and times Ms. McDowell visited the Property to serve personal
notice, the time and date notice was posted on the Property, and two photographs
of the front door of the Property. (Field Report, Bureau’s Hr’g Ex. 6, R.R. at 57a.)
The first photograph, dated August 16, 2013, shows a notice attached to the front
door. The second photograph, dated August 19, 2013, shows the front door of the
Property with no notice attached.


       The Pennsylvania Rules of Evidence define hearsay as a statement, other
than one made by the declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted. Pa. R.E. 801(c). Hearsay is not
admissible unless one of the exceptions in Rule 803 of the Pennsylvania Rules of
Evidence applies or if admissibility is alternatively granted by statute. Pa. R.E.
803. Rule 803(6), the so-called business-record exception, provides:

       The following are not excluded by the rule against hearsay, regardless
       of whether the declarant is available as a witness:

       ...

       (6) Records of a Regularly Conducted Activity. A record (which
       includes a memorandum, report, or data compilation in any form) of
       an act, event or condition if,

       (A) the record was made at or near the time by--or from information
       transmitted by--someone with knowledge;

                                         10
       (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
       Rule 902(11) or (12) or with a statute permitting certification; and

       (E) neither the source of information nor other circumstances indicate
       a lack of trustworthiness.

Pa. R.E. 803(6). This standard is also reflected in the Uniform Business Records
as Evidence Act, which provides:

       (b) General rule.--A record of an act, condition or event shall, insofar
       as relevant, be competent evidence if the custodian or other qualified
       witness testifies to its identity and the mode of its preparation, and if it
       was made in the regular course of business at or near the time of the
       act, condition or event, and if, in the opinion of the tribunal, the
       sources of information, method and time of preparation were such as
       to justify its admission.

42 Pa. C.S. § 6108(b).

       Upon review, we conclude that the trial court did not err in admitting the
Field Report produced by Ms. McDowell into evidence as a business record.8 Ms.
Martz testified at the hearing that she was the custodian of the Bureau’s records,
that the document was developed by the Bureau’s agent, that such documents are

       8
          Our review of a decision to admit evidence under the business record exception is
limited to determining whether the trial court acted within its discretionary power and that such
discretion was exercised within the bounds of the Uniform Business Record as Evidence Act.
Duquesne Light Company v. Woodland Hills School District, 700 A.2d 1038, 1049 (Pa. Cmwlth.
1997). “A trial court’s evidentiary rulings may be reversed on appeal upon a showing of an error
of law or clear abuse of discretion.” Id.

                                               11
normally kept by the Bureau, that those files are kept in her office, and that the
documents are signed by the posting agent and notarized. (Hr’g Tr. at 9-10, R.R.
at 32a.) Ms. Martz testified that the Bureau’s posting agent posts the properties
subject to the tax sale and then provides the Bureau with files on a disc containing
the pictures and other information. (Hr’g Tr. at 10, R.R. at 32a.) Although the
Field Report itself is not dated, the activities listed in the report occurred between
August 16, 2013 and August 19, 2013. As such, it is clear that the Field Report
was developed at some point after August 19, 2013 and prior to the tax sale on
September 16, 2013. Thus, we conclude that the testimony and the Field Report,
itself, contain sufficient indication of reliability to warrant its admission and we
cannot say that the trial court abused its discretion. See In re Indyk’s Estate, 413
A.2d 371, 373 n.2 (Pa. 1979) (stating that “[a] determination as to whether the
event is sufficiently contemporaneous with the event is left to the broad discretion
of the trial court”).


       Objector argues in the alternative that, even if the Field Report is a business
record subject to Rule 803(6), the information contained therein is double hearsay
and must be excluded. Objector contends that Ms. McDowell’s statements that she
posted the notice and the photographs are double hearsay and inadmissible.


       Double hearsay is “[a]n out-of-court declaration [that] contain[s] another
out-of-court declaration.” Commonwealth v. Laich, 777 A.2d 1057, 1060 (Pa.
2001). Double hearsay is admissible when each statement within an out-of-court
declaration falls under an exception to the hearsay rule. Id. “When dissecting a
double hearsay statement, the reliability and trustworthiness of each declarant must


                                         12
be independently established.” Commonwealth v. Scott, 470 A.2d 91, 94 (Pa.
1983). The Field Report does not appear to contain double hearsay. All of the
statements contained in the Field Report are statements by a single declarant, Ms.
McDowell, detailing her activities with regard to the Property.       Objector has
provided no support for his contention that each entry in a report created by a
single declarant detailing activities must be independently analyzed. Accordingly,
we view the Field Report as a single out-of-court declaration that falls under the
business record exception and conclude that the trial court did not abuse its
discretion or make an error of law in admitting the Field Report into evidence.


   B. Mailed Notice
      Objector next argues the Bureau did not prove strict compliance with the
notice provisions of the Law because notice was not mailed to the heirs of Gail
Anderson. Objector argues further that the evidence does not support a conclusion
that, upon learning that the July 11, 2013 certified mail notifying George and
Evelyn Anderson of the tax sale was unclaimed and receiving the certified mail
receipt of the April 17, 2012 Claim Notice signed by Objector, the Bureau
complied with the requirements of the Law and due process to undertake
reasonable efforts to discover the whereabouts of and provide notice to the
owner(s) of the Property.


      Pursuant to Section 602(e) of the Law, 72 P.S. § 5860.602(e), the Bureau
must send notice to the “owner” of the property scheduled to be exposed to a tax
sale. An “Owner” is defined by Section 102 of the Law as:



                                        13
      the person in whose name the property is last registered, if registered
      according to law, or, if not registered according to law, the person
      whose name last appears as an owner of record on any deed or
      instrument of conveyance recorded in the county office designated for
      recording and in all other cases means any person in open, peaceable
      and notorious possession of the property, as apparent owner or owners
      thereof, or the reputed owner or owners thereof, in the neighborhood
      of such property; as to property having been turned over to the bureau
      under Article VII by any county, “owner” shall mean the county.

72 P.S. § 5860.102. We have summarized this definition “as the person in whose
name the property is last registered, or the person whose name last appeared as
owner of record on any deed.” Stanford-Gale, 816 A.2d at 1217. There is no
dispute that the last record owners of the Property are George and Evelyn
Anderson. (Deed, Objector’s Hr’g Ex. 2, R.R. at 73a.)


      Although it is clear that the Bureau satisfied Section 602(e) of the Law by
mailing notice to the last record owners of the Property, George and Evelyn
Anderson, the Andersons were deceased at the time and no notice was directly sent
to living persons with interest in the Property. The General Assembly added
Section 607.1 of the Law9 in 1986, requiring tax claim bureaus to go beyond
simply sending notice to the address listed on the property records when any doubt
is raised concerning receipt of the mailed notice. Farro v. Tax Claim Bureau of
Monroe County, 704 A.2d 1137, 1143 (Pa. Cmwlth. 1997). Section 607.1 states:

      (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, mortgagee,
      lienholder or other person or entity whose property interests are likely
      to be significantly affected by such tax sale, and such mailed
      notification is either returned without the required receipted personal
      9
          Added by Section 30 of the Act of July 3, 1986, P.L. 351, 72 P.S. § 5860.607a.

                                               14
      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
      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.

      (b) The notification efforts required by subsection (a) shall be in
      addition to any other notice requirements imposed by this act.


72 P.S. § 5860.607a (emphasis added).


      By enacting Section 607.1, the General Assembly required tax claim bureaus
to conduct reasonable efforts to discover the whereabouts of, and provide notice to,
persons to which notice is required by other provisions of the Law. Neither
Section 607.1 of the Law nor due process “require[s] the taxing bureau to perform
the equivalent of a title search or to make decisions to quiet title.” In re Tax Sale
of Real Property Situated in Jefferson Township, 828 A.2d 475, 479 (Pa. Cmwlth.
2003); see also Stanford-Gale, 816 A.2d at 1217 (holding that reasonably
calculated notice does not require tax claim bureaus to conduct extraordinary
efforts to provide notice). Further, Section 607.1(a) of the Law does not require
the Bureau “to surf the web for an owner’s alternative address or phone number,


                                         15
particularly where the Bureau is satisfied through other efforts that it has the
owner’s correct address on file.” Jefferson Township, 828 A.2d at 480. We have
summarized the efforts required as “determining the owners of record and then to
use ordinary common sense business practices to ascertain proper addresses where
notice of the tax sale may be given.” Id. at 479.


      Objector, relying on our decision in Krawec, contends that the Bureau
should have searched the Register of Wills to determine whether George and
Evelyn were alive prior to conducting the upset tax sale. In Krawec, we addressed
an upset tax sale of property owned by a taxpayer who died after receiving the
notice of a claim from the tax claim bureau. Krawec, 842 A.2d at 522. A second
claim notice sent by the bureau to taxpayer was returned to the bureau marked
“Deceased.” Id. The bureau then sent a notice of sale to the deceased property
owner, which was returned “attempted not known.”             Id.   The bureau then
attempted to discover a new address for taxpayer by checking its files, the
telephone directory, and the records of the tax assessment bureau, tax collector and
recorder of deeds. Id. The bureau did not check the register of wills to see if a will
had been probated or to ascertain the address of taxpayer’s estate. Id. at 525.
Upon review we held that, under those circumstances, “‘ordinary common sense
business practices’ would dictate that the Bureau should inquire of the Register of
Wills whether a will had been probated for [the t]axpayer” and voided the sale. Id.


      However, the bureau in Krawec had received a returned notice from the
postal authorities marked “Deceased,” while the Bureau here had no notice that
George and Evelyn Anderson are deceased. Upon receiving the tax sale notice


                                         16
returned unclaimed, Bureau staff searched the Bureau’s internal tax assessment
software called “Dove Net” and the White Pages to see whether George and
Evelyn Anderson were listed under a different address. (Hr’g Tr. at 24, R.R. at
36a.) Without having any knowledge that the record owners are deceased, the
Bureau was under no obligation to search the Register of Wills to ascertain
whether notice should be sent to an estate administrator. If Objector had notified
the post office that George and Evelyn Anderson are deceased or administered the
estates in a timely manner, the Bureau would have received notice that the
Andersons are deceased and would have been required, like the tax claim bureau in
Krawec, to search the Register of Wills for an alternative address of the estate.
The fact that the Bureau did not have such information was due to Objector’s own
doing and did not impose additional obligations on the Bureau.


      Relatedly, Objector argues that the tax sale should be set aside because the
Bureau failed to put an adequate notation in the record describing the efforts it
undertook to locate the owners of the Property and the results thereof.


      Section 607.1(a) of the Law provides that after exercising a reasonable
search to discover the whereabouts of the property owner, “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.”         72 P.S. §
5860.607a(a).


      Here, the notation at issue are markings stating “DN” and “WP” written on
the top of the return receipt to the July 11, 2013 Sale Notice. (Sale Notice,


                                          17
Bureau’s Hr’g Ex. 2, R.R. at 48a.) Ms. Martz testified that these markings were
placed on the Sale Notice by one of three women that work in her office and
signify that Bureau staff searched their Dove Net system and the White Pages.
(Hr’g Tr. at 25-26, R.R. at 36a.) Ms. Martz testified that placing such handwritten
notations is the normal way that the Bureau notes searches for alternative
addresses. (Hr’g Tr. at 25-26, R.R. at 36a.) Although Section 607.1 does not
provide detailed requirements for the notation, the notations in the file, combined
with the credible testimony of Ms. Martz, are sufficient to show that reasonable
efforts were taken. As such, we do not find Objector’s argument persuasive that
the tax sale should be set aside because the Bureau failed to put an adequate
notation in the record.


      Objector also argues that there is no proof that the August 28, 2013 sale
notice sent via first class mail was received by Objector. Objector contends that
the presumption that mail properly addressed and posted is received by the
addressee is not applicable here because the mail was addressed to George and
Evelyn Anderson, who are deceased.


      It is well settled that, under the “mailbox rule,” it is presumed that items
properly mailed will be received by the person to whom the mail was addressed.
C.E. v. Department of Public Welfare, 97 A.3d 828, 832 (Pa. Cmwlth. 2014).
Even if Objector is correct that the legal presumption is inapplicable here, the
Bureau is under no obligation to prove that the notice sent via first class mail was
received. The Bureau’s burden is only to show that the letters were sent to the
record owners. See Matter of Tax Sales by Tax Claim Bureau of Dauphin County,


                                        18
651 A.2d 1157, 1160 (Pa. Cmwlth. 1994) (stating that “[w]here the bureau has
complied with notice requirements of the Law, the fact that notice was not actually
received by the persons responsible for paying the delinquent taxes will not defeat
the sale”).


       Accordingly, for the foregoing reasons, we conclude that the Bureau strictly
complied with the notice requirements of the Law and the tax sale of the Property
shall not be set aside.10 The December 2, 2014 Order of the trial court is affirmed.




                                              ________________________________
                                              RENÉE COHN JUBELIRER, Judge




       10
          Because we conclude that the Bureau strictly complied with the notice requirements of
the Law, we need not address Objector’s argument that he lacked actual notice that the Property
was to be exposed to an upset tax sale on September 16, 2013.

                                              19
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA




In Re: Dauphin County Tax          :
Sale of 2013                       :   No. 2306 C.D. 2014
                                   :
Appeal of: Samuel M. Hester        :



                               ORDER



     NOW, January 8, 2016, the December 2, 2014 Order of the Court of
Common Pleas of Dauphin County, entered in the above-captioned matter, is
AFFIRMED.


                                   ________________________________
                                   RENÉE COHN JUBELIRER, Judge
              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


In Re: Dauphin County Tax                       :
Sale of 2013                                    :   No. 2306 C.D. 2014
                                                :
Appeal of: Samuel M. Hester                     :   Argued: September 17, 2015


BEFORE: HONORABLE DAN PELLEGRINI, President Judge
        HONORABLE RENÉE COHN JUBELIRER, Judge
        HONORABLE P. KEVIN BROBSON, Judge


DISSENTING OPINION
BY JUDGE BROBSON                                    FILED: January 8, 2016

               I dissent from Part II.A of the majority opinion. There, the majority
examines Samuel M. Hester’s (Objector) claim that the Dauphin County Tax
Claim Bureau (Bureau) did not meet its burden to prove that it strictly complied
with the posting requirement of Section 602(e)(3) of the Real Estate Tax Sale Law
(Law).1 Objector contends that a field report created by a third-party posting
company, Palmetto Posting, constituted inadmissible hearsay.                      The majority
concluded that the field report, which provided photographs of 2401 Thornton
Road, Harrisburg, Pennsylvania (Property), and the dates and times at which the
Property was posted, was admissible under Rule 803(6) of the Pennsylvania Rules
of Evidence, which is often referred to as the “business records exception” to
hearsay. I respectfully disagree.



      1
          Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. § 5860.602(e)(3).
             During the hearing before the Court of Common Pleas of Dauphin
County (trial court), the Bureau offered the field report as evidence that the
Property was posted pursuant to the requirements of Section 602(e)(3) of the Law.
The Bureau’s witness, Holly Martz, testified as follows regarding the Bureau’s
procedures concerning posted notice:
                   [The field report] is a copy of the sale posting
             which is completed for the sale of the property as
             required by . . . [the L]aw. The . . . Bureau hires a
             posting company which we have used now for probably
             four years.
                   They post the properties that are going to tax sale
             and then they provide us a file on disc which I keep in the
             office and I can also print out actual pictures of the
             postings that they did that day. It is also notarized and
             signed by the person that posts them.
(Reproduced Record (R.R.) at 32a.) Ms. Martz further explained that the field
report was kept in the Bureau’s office in the normal course of business for tax
sales. (Id.) Objector objected to the admission of the field report. The trial court
overruled the objection and admitted the field report pursuant to the business
records exception to hearsay set forth in Pa. R.E. 803(6).
             Pa. R.E. 803 sets forth exceptions to the rule against hearsay,
including an exception for records of a regularly conducted activity. Pa. R.E.
803(6) defines the phrase “records of a regularly conducted activity” as:
             A record (which includes a memorandum, report, or data
             compilation in any form) of an act, event or condition 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,


                                       PKB-2
                    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
                    Rule 902(11) or (12) or with a statute permitting
                    certification; and
                    (E) neither the source of information nor other
                    circumstances indicate a lack of trustworthiness.
A qualified witness need not be the preparer of the record, nor does the qualified
witness need to have personal knowledge of the information contained in the
record. R.A. Freudig Assocs. v. Ins. Dep’t, 532 A.2d 509, 512 (Pa. Cmwlth. 1987).
“As long as the authenticating witness can provide sufficient information relating
to the preparation and maintenance of the records to justify a presumption of
trustworthiness for the business records of a company, a sufficient basis is
provided to offset the hearsay character of the evidence.” In re Indyk’s Estate,
413 A.2d 371, 373 (Pa. 1979). Specifically, “[a]n individual may be a qualifying
witness and his testimony may lay a proper foundation for the admission of a
report if his responsibilities include the review of the report in question and he
testifies that the report was prepared by a subordinate of his and maintained for
him by a member of his staff.” First Ward Republican Club of Phila. v. Pa. Liquor
Control Bd., 11 A.3d 38, 46 (Pa. Cmwlth. 2010), appeal denied, 24 A.3d 864
(Pa. 2011).
              Here, Ms. Martz’s testimony was insufficient to overcome the hearsay
objection. The field report was not generated by the Bureau in the course of a
regularly conducted activity of its business. Rather, the field report was created in
the course of a regularly conducted activity of a third party—namely, Palmetto

                                      PKB-3
Posting, over which Ms. Martz had no supervisory relationship. In fact, Ms. Martz
possessed very little, if any, specialized knowledge or training with respect to the
regularly conducted activities of Palmetto Posting. Ms. Martz was, therefore,
unqualified to testify as to the activities of Palmetto Posting’s employees. Thus, in
order to overcome the hearsay objection, it was necessary for an employee of
Palmetto Posting to lay a foundation for the admissibility of the field report by
testifying to the manner in which the report was prepared and maintained. But see,
e.g., Zion Bullitt Ave. Ltd. P’ship v. Westmoreland Cnty. Tax Claim Bureau,
(Pa. Cmwlth., No. 1396 C.D. 2014, filed June 4, 2015), slip op. at 7-8 (concluding
that representative trained and certified by USPS in tracking items had sufficient
training and specialized knowledge so as to testify competently to USPS delivery
record).2 Further, there is no indication that the record was created at or near the
time of posting. Although the majority explains that “it is clear that the Field
Report was developed at some point after August 19, 2013 and prior to the tax sale
on September 16, 2013,” (Maj. Op. at 12), the field report is not dated. Without
the testimony of an employee of Palmetto Posting, there is no way to discern when
the field report was created so as to evaluate whether the record was made at or
near the time of posting.
               Based on the circumstances described above, I would conclude that
Ms. Martz’s testimony was insufficient to overcome the hearsay objection to the
field report, and, therefore, the field report constituted inadmissible hearsay. The
Bureau should have presented the testimony of an employee of Palmetto Posting so


       2
         This decision is cited for its persuasive value, but not as binding precedent, pursuant to
Section 414 of the Commonwealth Court’s Internal Operating Procedures.



                                             PKB-4
as to establish the trustworthiness of the document.     Absent the information
contained in the field report, there is no evidence to establish that the Bureau
strictly complied with the posting requirement of Section 602(e)(3) of the Law. I
would, therefore, reverse the trial court’s order.




                                 P. KEVIN BROBSON, Judge




                                        PKB-5
