             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

William Lee Clemmer                             :
                                                :
                v.                              :
                                                :
Fayette County Tax Claim Bureau                 :
                                                :
                v.                              :   No. 260 C.D. 2017
                                                :   Submitted: November 13, 2017
Jason Brooks,                                   :
                        Appellant               :

BEFORE:         HONORABLE MARY HANNAH LEAVITT, President Judge
                HONORABLE MICHAEL H. WOJCIK, Judge
                HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION BY
PRESIDENT JUDGE LEAVITT                                         FILED: December 14, 2017

                Jason Brooks (Purchaser) appeals an order of the Court of Common
Pleas of Fayette County (trial court) granting the petition of William Clemmer
(Taxpayer) to set aside a tax sale of property. In doing so, the trial court held that
the Fayette County Tax Claim Bureau (Tax Claim Bureau) failed to comply with the
statutory notice requirements of the Real Estate Tax Sale Law (Tax Sale Law).1
Purchaser asserts that the trial court erred in this regard and that, in any case,
Taxpayer had actual notice of the upset tax sale. Discerning no merit to these
contentions, we affirm the trial court.
                On June 18, 2004, Taxpayer and his father, Barry Clemmer, Sr.,
purchased a property located at 4527 Morgantown Road, Fayette County (Property)
for $23,000, as joint tenants with a right of survivorship. Certified Record (C.R.),
Exceptions to Upset Tax Sale, Exhibit A. Taxpayer became the sole owner of the


1
    Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. §§5860.101-5860.803.
Property when his father died on April 20, 2011. Taxpayer did not reside at the
Property but, rather, nearby at 4543 Morgantown Road. On September 19, 2016,
the Property was sold to Purchaser at an upset tax sale for $961.49. On November
21, 2016, Taxpayer filed a petition to set aside the upset tax sale. Purchaser
intervened, and the trial court conducted a hearing.
             At the hearing, Marjorie Stephanini, First Assistant of the Tax Claim
Bureau, testified about the Bureau’s procedures in conducting the upset tax sale of
the Property, for which taxes in the amount of $733.67 were past due. Stephanini
explained that Taxpayer’s address on file was 4543 Morgantown Road, and it was
to that address that the Tax Claim Bureau sent a notice of the upset sale by certified
mail. The certified mailing was returned to the Bureau unclaimed. Stephanini
explained the Tax Claim Bureau’s response to the return of a certified mailing as
unclaimed:

             [Counsel]: Once the Tax Claim Bureau receives a returned letter,
             what typically is the next step that they [sic] follow in trying to
             make sure that notice is given?
             [Stephanini]: If it was – we go by the address that is on file with
             us.

Notes of Testimony, 1/13/2017, at 18 (N.T. __); Reproduced Record at 38a (R.R.
__). On August 29, 2016, the Tax Claim Bureau sent a 10-day notice of the upset
tax sale by first-class mail to Taxpayer at 4543 Morgantown Road, the address on
file.
             Taxpayer testified that he had been incarcerated in the Fayette County
Prison since March 24, 2016. Accordingly, he did not receive either the May 17,
2016, certified mailing or the first-class mailing of August 29, 2016. The parties



                                          2
stipulated that Taxpayer was incarcerated as of March 24, 2016, and that Taxpayer
remained incarcerated as of January 3, 2017, the date of the hearing.
             On February 6, 2017, the trial court set aside the upset sale of
Taxpayer’s Property. The trial court held that the Tax Claim Bureau did not comply
with the statutory notice provisions of the Tax Sale Law because it did not make
reasonable efforts to locate Taxpayer after the certified mailing was returned
unclaimed. The trial court explained as follows:

             It is undisputed that [Taxpayer] was incarcerated in the Fayette
             County Prison at the time the said notices were sent. Where a
             mailed notice has not been delivered because of an inaccurate
             address, the Tax Bureau must make a reasonable effort to
             ascertain the identity of the owner(s)…. In the instant case, it
             appears to this Court that a reasonable effort by the Fayette
             County Tax Claim Bureau, being situate in the Fayette County
             Courthouse, would have involved at least a telephone call to the
             Fayette County Clerk of Courts, located in the same courthouse,
             to inquire as to whether Petitioner had been arrested, and if so,
             what address he provided to the authorities at the time of his
             arrest and whether, having been arrested, he might be lodged in
             a jail cell.

Trial Court Opinion, 2/6/2017, at 2-3; R.R. 118a-19a. Purchaser appealed, but the
Tax Claim Bureau did not appeal.
             We begin with a review of the relevant law. The Tax Sale Law requires
a tax claim bureau to give notice to the delinquent taxpayer before his property can
be sold in satisfaction of overdue taxes. In re Consolidated Reports and Return by
Tax Claims Bureau of Northumberland County of Properties, 132 A.3d 637, 644
(Pa. Cmwlth. 2016). The United States Supreme Court has held that due process is
implicated when property is taken for the collection of taxes, stating:

             [p]eople must pay their taxes, and the government may hold
             citizens accountable for tax delinquency by taking their property.

                                          3
             But before forcing a citizen to satisfy his debt by forfeiting his
             property, due process requires the government to provide
             adequate notice of the impending taking.

Jones v. Flowers, 547 U.S. 220, 234 (2006). To satisfy due process, a tax claim
bureau must provide “notice reasonably calculated, under all the circumstances, to
apprise interested parties of the pendency of the action and afford them an
opportunity to present their objections.” Id. at 226 (internal quotation omitted). The
notice provisions of the Tax Sale Law “assure that no one is deprived of property
without due process of law.” In re Tax Claim Bureau, 419 A.2d 206, 209 (Pa.
Cmwlth. 1980). Accordingly, a tax claim bureau must strictly comply with each and
every statutory notice provision, or the tax sale will be set aside. Smith v. Tax Claim
Bureau of Pike County, 834 A.2d 1247, 1252 (Pa. Cmwlth. 2003).
             Relevant to this appeal is Section 602(e) of the Tax Sale Law, which
governs notice requirements to the owner of the property exposed to an upset tax
sale. Section 602(e) states as follows:

             (e) In addition to such publications, similar notice of the sale
             shall also be given by the bureau as follows:
                    (1) At least thirty (30) days before the date of the
                    sale, by United States certified mail, restricted
                    delivery, return receipt requested, postage prepaid,
                    to each owner as defined by this act.
                    (2) If return receipt is not received from each
                    owner pursuant to the provisions of clause (1), then,
                    at least ten (10) days before the date of the sale,
                    similar notice of the sale shall be given to each
                    owner who failed to acknowledge the first notice by
                    United States first class mail, proof of mailing, at
                    his last known post office address by virtue of the
                    knowledge and information possessed by the
                    bureau, by the tax collector for the taxing district
                    making the return and by the county office
                    responsible for assessments and revisions of taxes.
                                           4
                   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(e) (emphasis added). In short, the tax claim bureau must notify
“each owner” of the scheduled sale by certified mail and then by first class mail, if
the owner has “failed to acknowledge the first notice.” Id.
             Where the certified mailing is returned unclaimed, the tax claim bureau
must take additional steps. Section 607.1(a) of the Tax Sale Law 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 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.




                                          5
72 P.S. §5860.607a(a)2 (emphasis added). Simply, the tax claim bureau “must
exercise reasonable efforts” to locate the taxpayer whose certified mailing is
returned “without the required receipted personal signature” of the taxpayer. Id. The
legislature has provided examples of “reasonable efforts” and clarified that these
examples are not definitive but merely illustrative. Indeed, we have cautioned that
undertaking the illustrative examples may not suffice. Stated otherwise, “[t]he
statute leaves open the possibility that a tax claim bureau’s reasonable effort is not
necessarily restricted to the searches listed in [Section] 607.1 of the Tax Sale Law.”
In re Upset Tax Sale of September 29, 2014, 163 A.3d 1072, 1078 (Pa. Cmwlth.
2017) (internal quotations omitted). A showing that the property owner had actual
notice of the pending tax sale can ameliorate the need for strict compliance with the
notice provisions. Consolidated Reports, 132 A.3d at 645. With this paradigm in
mind, we turn to the parties’ arguments on appeal.3
               Purchaser argues that the trial court erred in holding that the Tax Claim
Bureau did not comply with the notice provisions of the Tax Sale Law. Purchaser
concedes that the unclaimed certified mailing triggered the “reasonable efforts”
requirement of Section 607.1, but he argues that reasonable efforts do not include a
search of prisons to see where or if the property owner is incarcerated. Rather, it
was Taxpayer’s burden to notify the Tax Claim Bureau of his incarceration.
               Taxpayer responds that there is no evidence that the Tax Claim Bureau
exercised any effort to locate him, let alone a reasonable one. He contends that



2
  Added by the Act of July 3, 1986, P.L. 351.
3
  Our review determines whether the trial court abused its discretion, erred as a matter of law, or
rendered a decision with lack of supporting evidence. In re Upset Tax Sale of September 29, 2014,
163 A.3d at 1074 n.3.


                                                6
minimal effort would have revealed his incarceration in the Fayette County Prison,
which is located in the same building as the Tax Claim Bureau.4
              In reviewing the validity of a tax sale, the court must focus “not on the
alleged neglect of the owner, which is often present in some degree, but on whether
the activities of the [tax claim bureau] comply with the requirements of the [statute].”
Consolidated Reports, 132 A.3d at 644 (quoting Smith, 834 A.2d at 1251). It is the
conduct of the tax claim bureau that is determinative of compliance with the statutory
notice provisions. The question here is whether the Tax Claim Bureau made
“reasonable efforts” to discover the whereabouts of Taxpayer after its certified
mailing to him was returned as unclaimed.
              Section 607.1 of the Tax Sale Law states that reasonable efforts include,
“but [are] not necessarily [ ] restricted to:” (1) a search of current county telephone
directories, (2) a search of dockets and indices of the county tax assessment offices,
(3) a search of the recorder of deeds office and the prothonotary’s office, and (4)
contact with alternate addresses or telephone numbers that may be included in the
property file. 72 P.S. §5860.607a(a). This list details the “mandatory minimum
search required,” but what constitutes a reasonable effort is fact-specific.
Steinbacher v. Northumberland County Tax Claim Bureau, 996 A.2d 1095, 1099
(Pa. Cmwlth. 2010) (internal quotation omitted). It matters not that the reasonable
effort may not have borne fruit. An effort must still be undertaken. Maya v. County
of Erie Tax Claim Bureau, 59 A.3d 50, 57 (Pa. Cmwlth. 2013). Futility is not a
defense to a tax claim bureau’s failure to exercise reasonable efforts. Id. Further,
the tax claim bureau must do a reasonable search even where the address to which

4
  Taxpayer notes that Purchaser knew of Taxpayer’s incarcerated status at the time of the upset
sale. Taxpayer was incarcerated on an assault conviction stemming from a fistfight with
Purchaser.
                                              7
the tax claim bureau sent the notices is correct. Grove v. Franklin County Tax Claim
Bureau, 705 A.2d 162, 164 (Pa. Cmwlth. 1997).
             Here, the Tax Claim Bureau did not offer evidence that it undertook
any effort to locate Taxpayer.       First Assistant Stephanini testified that when
Taxpayer’s certified mailing was returned unclaimed, the Tax Claim Bureau simply
sent the first class mailing of the notice to the same “address on file.” N.T. 18; R.R.
38a. She did not testify that the Tax Claim Bureau did anything to find an alternate
address. Nor was there any evidence of a notation in Taxpayer’s property file to
document that a reasonable effort was made. 72 P.S. §5860.607a(a) (requiring that
“a notation [] be placed in the property file describing the efforts made….”).
             For these reasons, we reject Purchaser’s first issue on appeal. We need
not decide whether the Tax Claim Bureau was required to do a search of prisons as
part of its reasonable effort to locate Taxpayer because the record is devoid of
evidence that the Tax Claim Bureau made any effort at all to locate Taxpayer. See
Maya, 59 A.3d at 57. The tax sale did not comply with the notice requirements in
the Tax Sale Law and, thus, the trial court did not err in setting it aside.
             Alternatively, Purchaser argues that Taxpayer had actual notice of the
September 19, 2016, tax sale. In Consolidated Reports, we waived strict compliance
with the mail notice requirements of Section 602 of the Tax Sale Law because the
taxpayer had actual notice of the impending sale. The taxpayer, who lived on the
property sold at the upset sale, testified that she saw a pink fluorescent notice posted
on her lawn, but only read it in part. Consolidated Reports, 132 A.3d at 648. We
explained that

             [taxpayer] here possessed the notice which clearly and
             unequivocally stated that the Property was to be sold on
             September 18, 2013 unless the tax delinquency was paid by a
             date certain, and made a decision to read only a part of that
                                           8
              notice. [Taxpayer] understood that her home was in jeopardy as
              a result of defaulting on a payment agreement. Further, the
              portion of the notice she admits she read alerted her to the fact
              that there were looming consequences for her failure to pay.
              Based on these facts, although [taxpayer] apparently decided not
              to read the entire notice, we find that [taxpayer] had actual notice
              of the impending upset tax sale.

Id.
              Purchaser maintains that, as in Consolidated Reports, Taxpayer had
actual notice of the impending sale. In support, Purchaser directs the Court to the
following exchange:

              [Counsel]: And the other question that I had is, are you aware
              your property was concurrently under an installment plan to pay
              those taxes?
              [Objector]: Right. Right. Right.
              [Counsel]: And to your understanding, if you had not paid the
              taxes, the payment on the taxes had not been made, how did you
              understand – what did you understand would happen to the
              property?
              [Objector]: Of course it would be sold if I wasn’t making any
              payments at all.
              [Counsel]: And as far as you can remember, when was the last
              payment that you made on the property?
              [Objector]: July.
              [Counsel]: July of which year?
              [Objector]: 2015.

N.T. 31-32; R.R. 53a-54a. We disagree that Taxpayer’s testimony requires a
reversal of the trial court.




                                           9
             First, Consolidated Reports is distinguishable. In the present case,
Taxpayer did not see the notice posted on his Property, which fact was critical to the
holding in Consolidated Reports. Second, the testimony of Taxpayer cited by
Purchaser does not prove actual notice. Taxpayer’s awareness of the consequences
of unpaid property taxes does not equate to actual notice that his Property would be
sold on a particular day and at a precise time, i.e., September 19, 2016.
             In sum, the Tax Claim Bureau failed to comply with the notice
requirements of Sections 602 and 607.1 of the Tax Sale Law. Accordingly, the trial
court’s order setting aside the upset tax sale is affirmed.

                                     _____________________________________
                                     MARY HANNAH LEAVITT, President Judge




                                          10
        IN THE COMMONWEALTH COURT OF PENNSYLVANHIA

William Lee Clemmer                   :
                                      :
           v.                         :
                                      :
Fayette County Tax Claim Bureau       :
                                      :
           v.                         :   No. 260 C.D. 2017
                                      :
Jason Brooks,                         :
                 Appellant            :


                                  ORDER

           AND NOW, this 14th day of December, 2017, the order of the Court of
Common Pleas of Fayette County dated February 6, 2017 in the above-captioned
matter is AFFIRMED.
                                  _____________________________________
                                  MARY HANNAH LEAVITT, President Judge
