                  IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In Re: Petition to Set Aside Upset              :
Tax Sale                                        :
                                                :
                                                :    No. 1426 C.D. 2018
Appeal of: Craig Hansford                       :    Argued: September 9, 2019


BEFORE:         HONORABLE ANNE E. COVEY, Judge
                HONORABLE MICHAEL H. WOJCIK, Judge
                HONORABLE ROBERT SIMPSON, Senior Judge

OPINION BY
JUDGE COVEY                                          FILED: October 1, 2019

                Craig Hansford (Hansford) appeals from the Lehigh County Common
Pleas Court’s (trial court) September 17, 2018 order denying Hansford’s Amended
Petition to Set Aside Upset Tax Sale (Petition).1 Essentially, the issue before this
Court is whether Hansford was an owner occupant of 41 East Wyoming Street,
Allentown, Pennsylvania 18103 (Property) at the time of the upset tax sale.2
                The facts are undisputed.3 Hansford has owned the Property “[s]ince
2007, 2008.”4 Reproduced Record (R.R.) at 43a. Hansford was arrested on or about
May 22, 2017 and has been incarcerated thereafter.                  See R.R. at 43a-44a.          On
September 20, 2017, a tax sale ensued as a result of delinquent taxes. Hyoungjoon

       1
           On October 9, 2018, the trial court amended its order to include reference to its amended
opinion.
       2
          In his Statement of the Questions Involved, Hansford presents two issues: (1) whether the
Lehigh County Tax Claim Bureau met its burden of proving notice; and (2) whether the trial court
abused its discretion by denying his Petition. See Hansford Br. at 4. Because determining whether
Hansford was an owner occupant of the Property resolves both issues, the Court will address that
issue herein.
        3
          The facts are limited because the record is scant. However, as the issue before the Court is
a mixed question of fact and law, and the relevant facts are undisputed, the limited facts are
sufficient for this Court’s review.
        4
          According to the pleadings, Hansford and his mother Dorothy E. Hansford owned the
Property together with a right of survivorship. It is undisputed that Dorothy E. Hansford died in
2014.
Park (Park) purchased the Property at the tax sale for $60,000.00. See Original
Record, Hansford Memorandum in Support of Petition, Ex. A (Lehigh County
Property Tax Notes). On December 22, 2017, Hansford filed the Petition alleging
that he is an owner occupant of the Property, thus the Lehigh County Tax Claim
Bureau (Bureau) was required to personally serve him notice of the sale.5 On March
16, 2018, Park filed a Petition to Intervene. By March 20, 2018 order, the trial court
granted Park’s Petition to Intervene. The trial court held a hearing on July 9, 2018,
and heard argument on July 17, 2018. On September 17, 2018, the trial court denied
the Petition. On September 18, 2018, the trial court filed its opinion. On October 9,
2018, the trial court filed an amended opinion and an amended order incorporating
the amended opinion. Hansford appealed to this Court on October 24, 2018.6
               Hansford first argues that the Bureau failed to present evidence
establishing its compliance with Sections 601(a)(3) and 602 of the Real Estate Tax
Sale Law (RETSL).7 The Bureau rejoins that Section 602 of the RETSL is not an
issue before this Court because it was not raised before the trial court; and Section
601(a)(3) of the RETSL does not apply because Hansford was not an owner occupant
at the time of the sale.8
               Initially, with respect to the issues before this Court, the following
transpired before the trial court:

       5
          Hansford also filed his original Petition to Set Aside Upset Tax Sale on December 22,
2017. See R.R. at 1a.
        6
          “‘This [C]ourt’s review of a trial court’s order in a tax sale matter is limited to determining
whether the trial court erred as a matter of law, rendered a decision that is unsupported by the
evidence, or abused its discretion.’ City of Phila. v. Auguste, 138 A.3d 697, 700 (Pa. Cmwlth.
2016).” City of Phila. v. Rivera, 171 A.3d 1, 4 n.7 (Pa. Cmwlth. 2017). “Statutory interpretation is
a question of law over which our standard of review is de novo, and our scope of review plenary.”
Thomas Jefferson Univ. Hosps., Inc. v. Pa. Dep’t of Labor & Indus., 162 A.3d 384, 389 (Pa. 2017).
        7
          Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. §§ 5860.601(a)(3) (personal service
required 10 days before sale of owner-occupied property), 5860.602 (notice by publication and
certified mail required 30 days before sale).
        8
          Park’s brief contains the same arguments as the Bureau’s brief.
                                                   2
               THE COURT: . . . .
               We have two issues as defined by [Hansford’s a]ttorney
               [Glennis] Clark[,] and Attorney[] [Diane] Dinstel
               [representing Northeast Revenue Service, LLC, the agent
               for the Bureau] and [Attorney Kathryn] Williams
               [representing Park] agree are [sic] fair issues to deal with in
               a case like this.
               1. Whether [] Hansford is an owner occupant as defined
               under Section 102 of the [RETSL9] as to the [P]roperty at
               issue; correct?
               MS. WILLIAMS: Yes.
               MR. CLARK: Yes.
               MS. DINSTEL: Yes, Your Honor.
               THE COURT: 2. Whether the [RETSL] requires personal
               service on an owner who is not an owner occupant as
               defined by said statute; correct?
               MS. DINSTEL: Yes, Your Honor.
               THE COURT: That makes sense. Yes?
               MR. CLARK: Yes.
               THE COURT: Yes?
               MS. DINSTEL: Yes, Your Honor.
               THE COURT: Okay.
               MS. WILLIAMS: Yes.
               THE COURT: So the first is a factual question and the
               second is a legal question.
               MR. CLARK: Yes.
               THE COURT: Okay. And so we’ve got the issues now.
R.R. at 17a-18a.


      9
          72 P.S. § 5860.102 (Definitions).
                                              3
            The law is well-established that
              [w]hile a party has a duty to preserve an issue at every
              stage of a proceeding, he or she also must comply with
              the general rule to raise an issue at the earliest
              opportunity. Renna v. Dep’t of Transp., Bureau of
              Driver Licensing, 762 A.2d 785, 788 (Pa. Cmwlth.
              2000) (holding failure to raise issue during trial court’s
              hearing constituted waiver).
            Campbell v. Dep’t of Transp., Bureau of Driver Licensing,
            86 A.3d 344, 349 (Pa. Cmwlth. 2014) (emphasis added)[.]

City of Phila. v. Rivera, 171 A.3d 1, 6 (Pa. Cmwlth. 2017) (emphasis omitted).
Further, “[Pennsylvania Rule of Appellate Procedure] 302(a) provides: ‘Issues not
raised in the lower court are waived and cannot be raised for the first time on
appeal.’” In re RHA Pa. Nursing Homes Health & Rehab. Residence, 747 A.2d 1257,
1260 (Pa. Cmwlth. 2000). Accordingly, because Hansford did not raise the issue of
whether the Bureau complied with Section 602 of the RETSL before the trial court,
“this issue is waived.” RHA Pa. Nursing Homes, 747 A.2d at 1260.
            Section 601(a)(3) of the RETSL 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. . . . 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 of notice on
            one of the owners shall be deemed personal service on all
            owners.

72 P.S. § 5860.601(a)(3) (emphasis added). Section 102 of the RETSL defines
“Owner Occupant” as “the owner of a property which has improvements constructed


                                          4
thereon and for which the annual tax bill is mailed to an owner residing at the same
address as that of the property.” 72 P.S. § 5860.102.
             Hansford contends that he resides at the Property notwithstanding he is
presently incarcerated, thus, he is an owner occupant.     The Bureau asserts that
because, according to the Bureau’s tax records, the tax bills are mailed to another
address, Hansford is not an owner occupant by definition. Whether an owner who
normally resides at the property but is currently incarcerated, is an owner occupant
for purposes of Section 601(a)(3) of the RETSL appears to be an issue of first
impression. This Court will address the Bureau’s argument first.
             According to the Bureau’s Statement of Account, the Property’s tax bill
is mailed to: “1000 POSTAL RD UNIT 90242 Allentown PA 18109-4311[.]” R.R. at
53a. Based on this document alone, the Bureau asserts that because “the annual tax
bill is [not] mailed to . . . the same address as that of the [P]roperty,” 72 P.S. §
5860.102, Hansford cannot be an owner occupant.            See Bureau Br. at 4-5.
Specifically, the Bureau argues: “Based upon the records available to the Bureau, it
could not have known the [Property] was owner[]occupied and had no duty to
comply with [Section] []601(a)(3) [of the RETSL].” Bureau Br. at 5 (emphasis
added). However, because the issue before the trial court was limited to Section
601(a)(3) of the RETSL, the record is devoid of what notices were sent to Hansford
pursuant to Section 602 of the RETSL and whether they were returned. Hence, it is
disingenuous for the Bureau to refer to its knowledge without divulging information
directly relevant thereto.
             Notwithstanding, this Court has explained:

             Section 601(a)(3) [of the RETSL] demonstrates the General
             Assembly’s ‘heightened concern for owner occupants being
             divested of the very property in which they are residing.’
             Matter of Tax Sales by Tax Claim Bureau of Dauphin
             C[ty.], 651 A.2d 1157, 1159 (Pa. Cmwlth. 1994). We have

                                          5
              said that, ‘[b]y enacting [S]ection 601[(a)(3)] [of the
              RETSL], the [General Assembly] expressed a desire to
              provide a qualitatively different type of notice to an owner
              occupant and afford such owner with increased protection
              by way of additional notice.’ McKelvey v. Westmoreland
              C[ty.] Tax Claim Bureau, 983 A.2d 1271, 1274 (Pa.
              Cmwlth. 2009).

Famageltto v. Cty. of Erie Tax Claim Bureau, 133 A.3d 337, 346-47 (Pa. Cmwlth.
2016). Because the General Assembly’s reason for mandating personal service is
concern over the divesting of the property wherein owner occupants reside, without
the owner occupants first receiving notice, this Court cannot hold that Hansford is not
an owner occupant based solely on the Bureau’s lack of knowledge.
              The Bureau further argues:

              [Hansford] at the time of the hearing did not provide any
              evidence to establish the address of record with the
              Assessor’s Office of Lehigh County [(Assessor’s Office)]
              for mailing purposes was not provided to the Assessor’s
              Office by [Hansford]. [Hansford] did not offer any
              evidence to suggest that any attempts were made to notify
              the Bureau, the tax collector of the Lehigh County
              Assessor’s Office that the mailing address for the tax bills
              was incorrect.[10]

Bureau Br. at 5.
              However,

              [i]n 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
              [Bureau] comply with the requirements of the [statute].’ [In
              re Consol. Reports & Return by Tax Claims Bureau of
              Northumberland Cty. of Props.], 132 A.3d [637,] 644 [(Pa.
              Cmwlth. 2016)] (quoting Smith [v. Tax Claim Bureau of
              Pike Cty.], 834 A.2d [1247,] 1251 [(Pa. Cmwlth. 2003)]). It

       10
          Hansford co-owned the Property with his mother until she passed away. The record does
not disclose whether Hansford or his mother provided the address of record to the Assessor’s
Office. Nor does the record disclose whether Hansford knew the mailing address for the tax bills
was incorrect.
                                               6
               is the conduct of the [Bureau] that is determinative of
               compliance with the statutory notice provisions.[11]

Clemmer v. Fayette Cty. Tax Claim Bureau, 176 A.3d 417, 422 (Pa. Cmwlth. 2017).
               Interestingly, the Bureau asserts:

               The record established that prior to the [s]ale, [Hansford]
               resided at the [Property] for nine or ten years. During this
               nine[-] or ten[-]year time period, the tax bills for the
               [Property] were mailed to 1000 Postal Road, Unit 9024-42,
               Allentown, PA 18109-4311, which as previously stated is
               not the physical address of the [Property]. The taxes for the
               [Property] were paid up until 2015, which means for seven
               or eight years, the tax bills were reaching the ‘Owner’ of
               the [Property] without any issues.

Bureau Br. at 5 (emphasis added). The Bureau’s assertion is not persuasive given
that Hansford and his mother co-owned the Property until Hansford’s mother died in
2014 and the delinquency began in 2015.                 Rather, it shows that Hansford, the
“Owner,” may not have received the tax bills, but that Hansford’s mother received
and paid them. Hence, the delinquency began after she passed away.
               In light of Famageltto, this Court concludes that the Bureau is
misconstruing the definition of owner occupant by focusing on the “address . . . of the
property,” rather than the requirement that the tax bill be mailed to “an owner
residing at . . . the property.”         72 P.S. § 5860.102.          Recognizing the General
Assembly’s concern that owner occupants not be displaced, this Court cannot
determine whether Hansford is an owner occupant based solely on the address listed
on the Bureau’s records in this case.




       11
          Notwithstanding, Hansford’s attorney did in fact question the Bureau’s Agent Kimberly
Ciavarella regarding whether she was aware that the address listed on the Bureau’s tax records is
not a residence but, rather, a post office box; thus, attempting to demonstrate that the tax bill was
not mailed to another “property.” See R.R. at 38a.


                                                 7
              Moreover, taking the Bureau’s argument to its logical conclusion, if the
records inadvertently listed the wrong address, and it was undisputed that an owner
resided at the property being sold, the owner would not be entitled to personal service
merely because of the Bureau’s incorrect records. That result is contrary to the
General Assembly’s intent and the well-established law that the purpose of the
RETSL is not penal, but to obtain payment. The “‘tax sale laws were enacted with
the primary purpose of insuring the collection of taxes, and not to strip away citizens’
property rights.’ Tracy v. [Cty.] of Chester, Tax Claim Bureau, . . . 489 A.2d 1334
([Pa.] 1985); Stanford-Gale v. Tax Claim Bureau of Susquehanna [Cty.], 816 A.2d
1214, 1216 (Pa. Cmwlth. [2003]) . . . .” Rivera v. Carbon Cty. Tax Claim Bureau,
857 A.2d 208, 214 (Pa. Cmwlth. 2004). The RETSL simply gives taxing districts the
opportunity to collect delinquent taxes. Id. Because the General Assembly believed
it to be of utmost importance to give owner occupants greater protection than non-
owner occupants, it included Section 601(a)(3) of the RETSL to protect them from
losing the properties wherein they reside. For the aforementioned reasons, this Court
rejects the Bureau’s argument.
              Hansford contends that his incarceration at the time of the Property’s
sale does not negate that he was at all times an owner occupant of the Property. The
trial court ruled, based on Black’s Law Dictionary’s definition of residence, that
because “the evidence demonstrates and it is not disputed that [Hansford’s] bodily
presence during the relevant time period was as an inhabitant in prison . . . during the
relevant time period, [Hansford] resided in prison, and not at the [] Property.” Trial
Ct. Amended Op. at 3; see also Black’s Law Dictionary 1502 (10th ed. 2014). The
Bureau similarly argues that because Hansford “was not physically present at the
[Property] after May of 2017,” he was not an owner occupant.12 See Bureau Br. at 7.

       12
         The Bureau cites Hawkins v. Pennsylvania Housing Finance Agency (Agency), 595 A.2d
712 (Pa. Cmwlth. 1991), to support its position. In Hawkins, this Court ruled that the Agency’s
                                              8
               Following the above-stated rationale, under the RETSL, if a property
owner was hospitalized during the relevant time period, his home would not be
considered owner-occupied if an upset tax sale occurred during his hospitalization
because he would not be “physically present at the [property],” Bureau Br. at 7, but
rather he would be “an inhabitant in [the hospital] . . . during the relevant time period
. . . not at the property.”        Trial Ct. Amended Op. at 3; see also Black’s Law
Dictionary 1502 (10th ed. 2014). In ascertaining the General Assembly’s intent in
enacting a statute, it is presumed “[t]hat the General Assembly does not intend a
result that is absurd[.]” Section 1922(1) of the Statutory Construction Act of 1972, 1
Pa.C.S. § 1922(1). Interpreting the RETSL in a manner that would permit a property
owner who may be temporarily physically incapable of inhabiting his property to lose
his property without personal service, yields an unreasonable and absurd result.
               The fact that an owner may be temporarily physically incapable of
inhabiting his property does not mean he is no longer an owner occupant. This
statement is especially true here, where the length of Hansford’s absence was
approximately three months before the required personal service under Section




interpretation that a homeowner who was incarcerated for ten years did not occupy his dwelling for
purposes of the statutory occupancy and residency requirements of Article IV-C of the Housing
Finance Agency Law (Act 91), Act of December 3, 1959, P.L. 1688, as amended, added by Section
2 of the Act of December 23, 1983, P.L. 385, 35 P.S. §§ 1680.401c-1680.409c, 1680.412. Under
Act 91, a homeowner can only apply for assistance if, in addition to proving a hardship, the
property securing the mortgage is an “owner-occupied residence.” Section 401-C(a)(2) of Act 91,
35 P.S. § 1680.401c(a)(2) (emphasis added). The Hawkins Court used the definition of residence as
opposed to domicile because the word residence was used in the statute. Based thereon, the Court
found that because the homeowner was incarcerated, he did not meet the eligibility requirements.
Here, however, the undefined term is “owner-occupied property.” 72 P.S. § 5860.601(a)(3)
(emphasis added). Further, the burden is not on the taxpayer to prove that he is an owner occupant,
but for the Bureau to prove that it satisfied the notice requirements under circumstances wherein the
General Assembly included heightened protection for the owner occupant. Accordingly, Hawkins
does not control here.
                                                 9
601(a)(3) of the RETSL.13            Consequently, this Court concludes that, although
Hansford was physically incapable of inhabiting the Property at the relevant time
period,14 he is an owner occupant under the RETSL.
               Moreover, under circumstances where an owner who resides at the
property may not be physically present at his property during the relevant time
period, if the owner cannot be personally served, “the [B]ureau may petition the court
of common pleas to waive the requirement of personal notice for good cause shown,”
otherwise, the Bureau is mandated to personally serve the owner occupant. 72 P.S. §
5860.601(a)(3). The Bureau did not request waiver of personal service in the instant
case. Because Hansford is an owner occupant, the Bureau was required to personally
serve him notice of the tax sale before it could sell his property.
               As this Court expounded:

               The plain language of [S]ection 601(a)(3) [of the RETSL]
               unequivocally commands that ‘no owner[-]occupied
               property may be sold’ unless the owner occupant has
               received personal service of notice. The provision sets forth
               only one exception, an order waiving the personal service
               requirement for good cause shown. . . .
               In this case, [Hansford] was not personally served with
               written notice of the tax sale, and the Bureau did not obtain
               a waiver from this statutory requirement. Under these
               circumstances, the trial court [should have] concluded that
               the tax sale was invalid pursuant to [S]ection 601[(a)(3)] of
               the [RETSL].

McKelvey, 983 A.2d at 1274.


       13
           This Court notes that many retired individuals travel south for the winter. If any of the
homes wherein they reside were exposed to sheriff’s sale during those winter months, pursuant to
the Bureau’s argument and the trial court’s rationale, they would not be entitled to personal service
because they were not physically present in their homes during the relevant period. Such an
interpretation leads to an absurd and unreasonable result. See 1 Pa.C.S. § 1922(1).
        14
            Here, Hansford is physically incapable of inhabiting his Property because the
Commonwealth mandated his incarceration, not because he was residing at another property.
                                                 10
For all of the above reasons, the trial court’s order is reversed.


                           ___________________________
                           ANNE E. COVEY, Judge




                              11
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In Re: Petition to Set Aside Upset      :
Tax Sale                                :
                                        :
                                        :   No. 1426 C.D. 2018
Appeal of: Craig Hansford               :


                                     ORDER

            AND NOW, this 1st day of October, 2019, the Lehigh County Common
Pleas Court’s September 17, 2018 order is reversed.


                                     ___________________________
                                     ANNE E. COVEY, Judge
