J-A08020-14
J-A08021-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


EVELYN D. MCCULLOUGH-FRANTZ :     IN THE SUPERIOR COURT OF
AND KENNETH M. FRANTZ, HER    :        PENNSYLVANIA
HUSBAND,                      :
                              :
                 APPELLANTS   :
                              :
      v.                      :
                              :
CONSOL PENNSYLVANIA COAL      :
COMPANY, MAXINE FISCHER,      :
SINGLE, ROBERT FISCHER AND    :
DOREEN A. FISCHER, HIS WIFE,  :
VERE GAFFNEY AND GLORIA I.    :
GAFFNEY, HIS WIFE, KENNETH L. :
KIRTLEY AND ROBIN L. KIRTLEY, :
HIS WIFE, DAVID W. MCCULLOUGH:
AND FRANCES MCCULLOUGH, HIS :
WIFE, JOHN MCCULLOUGH AND     :
SUE MCCULLOUGH, HIS WIFE,     :
LAURA MILHAN, SINGLE, JEAN    :
RODRIGUEZ, SINGLE, AND JUDGE :
BRUCE M. SNELL, JR., AND ANN  :
SNELL, HIS WIFE               :
                              :
      v.                      :
                              :
CONSOL PENNSYLVANIA COAL      :
COMPANY, BERNARD B. WALLACE :
AND CHALMERS S. WALLACE       :
                              :
      v.                      :
                              :
CONSOL PENNSYLVANIA COAL      :
COMPANY,                      :
DONNA H. CIGANIK AND VINCENT :
P. CIGANIK, JR., HER HUSBAND, :
PATRICIA A. CLARK, WIDOW,     :
DENISE DAVIDSON, SINGLE, RAY :
C. ELMER, SINGLE, DOREEN L.   :
EUP, SINGLE, MRS. KENNETH     :
GUTHRIE, WIDOW, MARGARET J. :
J-A08020-14
J-A08021-14


SWART IREY, SINGLE,            :
NANCY IRWIN, SINGLE, DRAKE D. :
LEITHOLD AND LISA JAYNE        :
LEITHOLD, HIS WIFE, JOSEPH     :
LEITHOLD AND RHONDA B.         :
LEITHOLD, HIS WIFE, ROBERT G. :
MCCRACKEN AND PATRICIA M.      :
MCCRACKEN, HIS WIFE,           :
ELIZABETH B. SWART MOATS AND :
D.W. MOATS, HER HUSBAND,       :
RUTH ANN SWART PAGOS AND       :
DONALD L. PAGOS, HER           :
HUSBAND, SHARON L. RAFTER      :
AND RICHARD M. RAFTER, HER     :
HUSBAND, LINDA ROSENLIEB       :
AND RICHARD ROSENLIEB, HER     :
HUSBAND, EUGENE SCHERICH       :
AND SUSAN SCHERICH, HIS WIFE, :
NEAL B. SCHOENIAN AND YVONNE :
M. SCHOENIAN, HIS WIFE, ELSIE :
SHAW, SINGLE, JERRY L. SHAW, :
SINGLE, LARRY SHAW AND JEAN :
A. SHAW, HIS WIFE, RUTH M.     :
SHAW, WIDOW, JOHN R. SHAW      :
AND LINDA M. SHAW, HIS WIFE, :
LOIS SINCLAIR AND JAMES W.     :
SINCLAIR, HER HUSBAND, KEITH :
STIGLBAUER AND SALLY           :
STIGLBAUER, HIS WIFE, WAYNE    :
STIGLBAUER, SINGLE, DUANE T. :
SWART AND SHARON SWART, HIS :
WIFE, JAMES H. SWART AND MARY :
LOU SWART, HIS WIFE, RALPH C. :
SWART AND NANCY M. SWART,      :
HIS WIFE, WAYNE C. SWART AND :
JOYCE E. SWART, HIS WIFE, BETH :
T. VOLPP AND RICHARD M. VOLPP, :
HER HUSBAND, AND DAVID R.      :
WALKER, SINGLE                 :




                                   2
J-A08020-14
J-A08021-14


     v.                          :
                                 :
CONSOL PENNSYLVANIA COAL         :
COMPANY                          :           No. 1015 WDA 2013

          Appeal from the Order of May 21, 2013, in the Court
          of Common Pleas of Greene County, Civil Division, at
                      No. A.D. No. 1086 of 2006.

EVELYN D. MCCULLOUGH-FRANTZ :            IN THE SUPERIOR COURT OF
AND KENNETH M. FRANTZ, HER    :               PENNSYLVANIA
HUSBAND,                      :
                              :
                APPELLANTS    :
                              :
     v.                       :
                              :
CONSOL PENNSYLVANIA COAL      :
COMPANY, MAXINE FISCHER,      :
SINGLE, ROBERT FISCHER AND    :
DOREEN A. FISCHER, HIS WIFE,  :
VERE GAFFNEY AND GLORIA I.    :
GAFFNEY, HIS WIFE, KENNETH L. :
KIRTLEY AND ROBIN L. KIRTLEY, :
HIS WIFE, DAVID W. MCCULLOUGH:
AND FRANCES MCCULLOUGH, HIS :
WIFE, JOHN MCCULLOUGH AND     :
SUE MCCULLOUGH, HIS WIFE,     :
LAURA MILHAN, SINGLE, JEAN    :
RODRIGUEZ, SINGLE, AND JUDGE :
BRUCE M. SNELL, JR., AND ANN  :
SNELL, HIS WIFE               :
                              :
     v.                       :
                              :
CONSOL PENNSYLVANIA COAL      :
COMPANY, BERNARD B. WALLACE :
AND CHALMERS S. WALLACE       :
                              :
     v.                       :
                              :
CONSOL PENNSYLVANIA COAL      :
COMPANY,                      :

                                     3
J-A08020-14
J-A08021-14


DONNA H. CIGANIK AND VINCENT :
P. CIGANIK, JR., HER HUSBAND, :
PATRICIA A. CLARK, WIDOW,      :
DENISE DAVIDSON, SINGLE, RAY :
C. ELMER, SINGLE, DOREEN L.    :
EUP, SINGLE, MRS. KENNETH      :
GUTHRIE, WIDOW, MARGARET J. :
SWART IREY, SINGLE,            :
NANCY IRWIN, SINGLE, DRAKE D. :
LEITHOLD AND LISA JAYNE        :
LEITHOLD, HIS WIFE, JOSEPH     :
LEITHOLD AND RHONDA B.         :
LEITHOLD, HIS WIFE, ROBERT G. :
MCCRACKEN AND PATRICIA M.      :
MCCRACKEN, HIS WIFE,           :
ELIZABETH B. SWART MOATS AND :
D.W. MOATS, HER HUSBAND,       :
RUTH ANN SWART PAGOS AND       :
DONALD L. PAGOS, HER           :
HUSBAND, SHARON L. RAFTER      :
AND RICHARD M. RAFTER, HER     :
HUSBAND, LINDA ROSENLIEB       :
AND RICHARD ROSENLIEB, HER     :
HUSBAND, EUGENE SCHERICH       :
AND SUSAN SCHERICH, HIS WIFE, :
NEAL B. SCHOENIAN AND YVONNE :
M. SCHOENIAN, HIS WIFE, ELSIE :
SHAW, SINGLE, JERRY L. SHAW, :
SINGLE, LARRY SHAW AND JEAN :
A. SHAW, HIS WIFE, RUTH M.     :
SHAW, WIDOW, JOHN R. SHAW      :
AND LINDA M. SHAW, HIS WIFE, :
LOIS SINCLAIR AND JAMES W.     :
SINCLAIR, HER HUSBAND, KEITH :
STIGLBAUER AND SALLY           :
STIGLBAUER, HIS WIFE, WAYNE    :
STIGLBAUER, SINGLE, DUANE T. :
SWART AND SHARON SWART, HIS :
WIFE, JAMES H. SWART AND MARY :
LOU SWART, HIS WIFE, RALPH C. :
SWART AND NANCY M. SWART,      :
HIS WIFE, WAYNE C. SWART AND :
JOYCE E. SWART, HIS WIFE, BETH :

                                   4
J-A08020-14
J-A08021-14


T. VOLPP AND RICHARD M. VOLPP, :
HER HUSBAND, AND DAVID R.      :
WALKER, SINGLE                 :
                               :
                               :
APPEAL OF: MAXINE FISCHER,     :
SINGLE, ROBERT FISCHER AND     :
DOREEN A. FISCHER, HIS WIFE,   :
VERE GAFFNEY AND GLORIA I.     :
GAFFNEY, HIS WIFE, KENNETH L. :
KIRTLEY AND ROBIN L. KIRTLEY, :
HIS WIFE, DAVID W. MCCULLOUGH:
AND FRANCES MCCULLOUGH, HIS :
WIFE, JOHN MCCULLOUGH AND      :
SUE MCCULLOUGH, HIS WIFE,      :
LAURA MILHAHN, SINGLE, JEAN    :
RODRIGUEZ, SINGLE, AND JUDGE :
BRUCE M. SNELL, JR., AND ANN   :
SNELL, HIS WIFE, BERNARD B.    :
WALLACE AND CHALMERS S.        :
WALLACE, HIS WIFE              :
DONNA H. CIGANIK AND VINCENT :
P. CIGANIK, JR., HER HUSBAND, :
PATRICIA A. CLARK, WIDOW,      :
DENISE DAVIDSON, SINGLE, RAY :
C. ELMER, SINGLE, DOREEN L.    :
EUP, SINGLE, MRS. KENNETH      :
GUTHRIE, WIDOW, MARGARET J. :
SWART IREY, SINGLE,            :
NANCY IRWIN, SINGLE, DRAKE D. :
LEITHOLD AND LISA JAYNE        :
LEITHOLD, HIS WIFE, JOSEPH     :
LEITHOLD AND RHONDA B.         :
LEITHOLD, HIS WIFE, ROBERT G. :
MCCRACKEN AND PATRICIA M.      :
MCCRACKEN, HIS WIFE,           :
ELIZABETH B. SWART MOATS AND :
D.W. MOATS, HER HUSBAND,       :
RUTH ANN SWART PAGOS AND       :
DONALD L. PAGOS, HER           :
HUSBAND, SHARON L. RAFTER      :
AND RICHARD M. RAFTER, HER     :
HUSBAND, LINDA ROSENLIEB       :

                                   5
J-A08020-14
J-A08021-14


AND RICHARD ROSENLIEB, HER     :
HUSBAND, EUGENE SCHERICH       :
AND SUSAN SCHERICH, HIS WIFE, :
NEAL B. SCHOENIAN AND YVONNE :
M. SCHOENIAN, HIS WIFE, ELSIE :
SHAW, SINGLE, JERRY L. SHAW, :
SINGLE, LARRY SHAW AND JEAN :
A. SHAW, HIS WIFE, RUTH M.     :
SHAW, WIDOW, JOHN R. SHAW      :
AND LINDA M. SHAW, HIS WIFE, :
LOIS SINCLAIR AND JAMES W.     :
SINCLAIR, HER HUSBAND, KEITH :
STIGLBAUER AND SALLY           :
STIGLBAUER, HIS WIFE, WAYNE    :
STIGLBAUER, SINGLE, DUANE T. :
SWART AND SHARON SWART, HIS :
WIFE, JAMES H. SWART AND MARY :
LOU SWART, HIS WIFE, RALPH C. :
SWART AND NANCY M. SWART,      :
HIS WIFE, WAYNE C. SWART AND :
JOYCE E. SWART, HIS WIFE, BETH :
T. VOLPP AND RICHARD M. VOLPP, :
HER HUSBAND, AND DAVID R.      :
WALKER, SINGLE                 :               No. 1045 WDA 2013


             Appeal from the Order of May 21, 2013, in the Court
             of Common Pleas of Greene County, Civil Division, at
                         No. A.D. No. 1086 of 2006.

BEFORE: ALLEN, OLSON AND WECHT, JJ.

MEMORANDUM BY OLSON, J.:                           FILED AUGUST 6, 2014

      In these four consolidated appeals, Appellants, Evelyn D. McCullough-

Frantz, et al.                                             et al. (hereinafter

                                     et al.

Donna H. Ciganik, et al. (he

entered on May 21, 2013, granting the motions for summary judgment filed

                                      6
J-A08020-14
J-A08021-14


on behalf of Appellee Consol Pennsylvania Coal Company (hereinafter

                                                                  ment. We

affirm.1

       In 2006, the Frantzes, the Fischers, the Wallaces, and the Ciganiks

instituted their current lawsuits by filing separate, but similar, complaints



they are the heirs to the last valid record owners of coal rights in certain

Greene County, Pennsylvania, properties.         See, e.g.

Complaint, 6/15/07, at ¶                                                5-8.

According to Appellants, as the heirs, they are the true owners of the coal,




Consol has been (and continues to) tortiously mine coal from the properties

that Appellants rightfully own. See, e.g.

at ¶                                               10.   Based upon these

averments, Appellants asserted trespass, conversion, and unjust enrichment

claims against Consol, wherein Appellants sought monetary relief from




1
  We note that the Frantzes filed their appeal (and their appellate brief) at
1015 WDA 2013 and the Ciganiks, Fischers, and Wallaces filed their
consolidated appeal (and their separate, consolidated appellate brief) at
1045 WDA 2013.       For purposes of disposition, we have sua sponte
consolidated the appeals at 1015 WDA 2013 and 1045 WDA 2013.


                                     7
J-A08020-14
J-A08021-14


Consol.2   See, e.g.                                             39-49; The

                                   14-26.

     Consol answered the individual complaints and admitted that it was

mining coal from the subject properties.      However, Consol denied that

Appellants had any property rights in any of the subject properties. Indeed,




                                                                  See, e.g.,

                                                                         52.

     Specifically, thes

property the Ciganiks were claiming); in 1933 (for the property the Wallaces

were claiming); and, in 1941 (for the property the Fischers and the Frantzes

                                                    resulted in the property

being sold to the Greene County Commissioners and, in each case, the

                                             See



Return,    12/4/1933;   Gr

12/1/1941. Moreover, in each case, the Greene County Commissioners sold


2
  In their original complaints, all Appellants asserted a claim for ejectment
against Consol. However, Appellants later withdrew these ejectment claims
and the operative complaints contain no claim for ejectment against Consol.


                                     8
J-A08020-14
J-A08021-14


the property in 1945 to an unrelated third party. See Order, 10/20/1945, at

1 (approving the sale of all three of the subject parcels from the Greene

County Commissioners to the unrelated third party and confirming the sale

absolutely). Finally, in each case, following a chain of succession involving

unrelated third parties, an unrelated entity purchased the property and then

leased it to Co

                          and therefore Appellants   of any and all rights in

the subject properties.



concluded that the issue of liability could be decided by cross-filed motions



of discovery, the parties filed cross-motions for summary judgment. Within

                                                     Appellants claimed that

they were the true owners of the coal, the coal mining rights, and the rights




pro

lack of notice.   See, e.g.

11/5/12, at 3. In support of their contention, Appellants pointed to record

evidence tending to show that, at




                                      9
J-A08020-14
J-A08021-14

                                                             3
                                                                 See Greene

                                                                           ty



Report and Return, 12/1/1941.    Further, Appellants noted that the record

evidence tended to show the following.



Cigan



died, testate, in 1896 and devised the subject property to Mary, James,

Maria, and Nancy Supler     who are the Ciganik                  See Will of

Isaac Supler, 9/1/1896, at 1-2.      Therefore, at the time of the 1932




                                                                      et al.



property was not [only] owned [] by W.H. Sweet, [but it was also owned by

                                                                 ernard Blair



was improperly assessed.


3
  For a discussion of the definition of seated land and the relevance of the
distinction between seated and unseated land in this case, see supra at
**16-17.


                                    10
J-A08020-14
J-A08021-14




G

Return, 12/1/1941. However, George E. McCullough died, testate, in 1903

and devised the subject property to Randolph and David. R. McCullough

                                              stors. Therefore, at the time of



        Based solely upon the averment that the subject properties were



sale[s] co                                                     See, e.g., The




deeds     were void for lack of notice. See, e.g., id. Appellants claimed that

they are thus the heirs to the last valid record holders of the properties and

that they are the owners of the coal, the coal mining rights, and the rights of

support in the subject properties.    As such, Appellants claimed that they

were entitled to summary judgment in their favor on their claims.



claimed that it was entitled to summary judgment against Appellants on a

variety of bases, including:   Appellants produced no evidence that would



ancestors proper notice under the then-operative Act of May 29, 1931, P.L.

                                      11
J-A08020-14
J-A08021-14


280, as amended, 72 P.S. § 5971a, et seq.

the five-year limitation period relating to the redemption of seated land

following a tax sale and the 21-year statute of limitation for actions to

recover real property;4 Appellants do not have standing to sue, as they do

not have any property rights in the subje



for Summary Judgment, 3/4/13, at 1-4.



to come forward with evidence that would show that Appellants or




Id. at 3. Appellants did not come forward with any such evidence. See The

Fran

¶ 9.



4
  We note that, in Poffenberger v. Goldstein, the Commonwealth Court
held that the catch-all six-year statute of limitations, found in 42 Pa.C.S.A.
§ 5527(b), was applicable in an action to set aside a 1985 tax sale for
deficient notice and that the statute of limitations began to run on the date
of the tax sale. Poffenberger v. Goldstein, 776 A.2d 1037, 1041-1042
(Pa. Cmwlth. 2001). Although the catch-all six-year statute of limitations
provision took effect on June 27, 1978, the limitations period would have
clearly expired by the time Appellants instituted their current actions.
Nevertheless, Consol did not move for summary judgment upon the catch-all
six-year statute of limitations provision. Therefore, we will not consider
whether Poffenberger is persuasive authority or whether the catch-all
provision entitled Consol to summary judgment in these cases.


                                     12
J-A08020-14
J-A08021-14




upon the above-

                                               in these consolidated cases,

although assessed as seated lands, should legally be considered to be




Consolidated Brief in Support of Summary Judgment Motion, 3/4/13, at 17.




for summary judgment. The May 21, 2013 order further declared that the




sales complied with the notice requirements for unseated land. Trial Court

Order, 5/21/13, at ¶ 1.     Further, the trial court held that, even if the



                                                                       Id. at

¶ 2. Therefore, the trial court

and that Consol was entitled to judgment as a matter of law.



and the two sets of appellants5 now raise the following claims:6


5
  As noted above, the Frantzes filed their appeal (and their appellate brief)
at 1015 WDA 2013 and the Ciganiks, Fischers, and Wallaces filed their
                                     13
J-A08020-14
J-A08021-14


        1. Can the trial court conclude [that] the land[s] subject to




        2. If the subject lands are assessed as seated lands, but are
        in fact unseated lands, is the proper tax sale procedure
        established for seated lands?

        3. Was improper assessment and lack of notice provided to
        the actual owners of the subject lands a defect that would
        invalidate the Tax Sales?




        assessed, requiring the taxing authorities to follow the tax
        sale procedures for seated land pursuant to the Act of May
        29, 1931, P.L. 280, No. 132, Section 7, including providing
        constitutionally adequate notice of the sales to the true
        owners of the properties?

        2. Whether the notice of the tax sales attempted by the
        taxing authorities was constitutionally adequate to provide
        the true owners with due process of law before being
        deprived of property when the property was assessed in the
        wrong name and when no notice to the true owners was
        attempted?




consolidated appeal (and their separate, consolidated appellate brief) at
1045 WDA 2013.
6
  The trial court ordered Appellants to file concise statements of errors
complained of on appeal, pursuant to Pennsylvania Rule of Appellate

within
claims they currently raise on appeal.


                                     14
J-A08020-14
J-A08021-14


                                                                   ted motion



judgment. We note:


        denying summary judgment is plenary, and our standard of
                                                   be reversed only
        where it is established that the court committed an error of
        law or abused its discretion.

        Summary judgment is appropriate only when the record
        clearly shows that there is no genuine issue of material fact
        and that the moving party is entitled to judgment as a
        matter of law. The reviewing court must view the record in
        the light most favorable to the nonmoving party and resolve
        all doubts as to the existence of a genuine issue of material
        fact against the moving party. Only when the facts are so
        clear that reasonable minds could not differ can a trial court
        properly enter summary judgment.

                                      , 932 A.2d 122, 124 (Pa. Super. 2007)

(internal citations omitted).

                                                            burden of proof on

an issue, he may not merely rely on his pleadings or answers in order to

survive summary judgment.       Failure of a non-moving party to adduce

sufficient evidence on an issue essential to his case and on which he bears

the burden of proof establishes the entitlement of the moving party to

                                Gubbiotti v. Santey, 52 A.3d 272, 273 (Pa.

Super. 2012) (internal quotations and citations omitted).

      On appeal, all Appellants claim that the trial court erred in concluding



                                     15
J-A08020-14
J-A08021-14




                                                                        9. We

agree that the trial court erred when it granted summary judgment upon the

basis that the properties constituted unseated lands.       Nevertheless, we

conclude that the trial court properly entered summary judgment in favor of

Consol and against Appellants in this case, as Appellants have neither

averred nor alleged that the Greene County Treasurer failed to provide

                                                                          See

ALCO Parking Corp. v. Public Parking Auth. of Pgh., 706 A.2d 343, 349

                       he order of a trial court may be affirmed on appeal if

it is correct on any legal ground or theory, regardless of the reason or theory

                                           quotations and citations omitted).




systems for selling land to recoup delinquent taxes:      one system existed

where the land was seated and one system existed where the land was

unseated. Our Supreme Court has explained the differences between seated

and unseated lands:

        [W]hether a tract of land is seated or unseated depends
        altogether upon what has been, or is being done upon it;
        upon the appearance which it may present to the eye of the
        assessor. . . . [T]he assessor has nothing to do with the
        misapprehensions or mistakes of the occupant; it is his

                                      16
J-A08020-14
J-A08021-14


          business to return the land as seated if he finds upon it such
          permanent      improvements     as   indicate    a   personal
          responsibility for its taxes. On the other hand, if there be
          no such improvements he must return it as unseated.
          Neither is [it] the business of the assessor to inquire how
          the improver holds the property . . . for the question is but
          how the taxes shall be collected: if seated, then from some
          person; but if unseated, from the land itself.

Bannard v. N.Y. State Natural Gas Corp., 293 A.2d 41, 50 (Pa. 1972),

quoting Stoetzel v. Jackson, 15 W.N.C. 260 (Pa. 1884); see also

Lackawanna Iron Co. v. Fales

not resided on the land, or profits have never been received from it, [the

land] will undoubtedly be considered as unseated. There are two modes in

which wild, uncultivated land may be made to assume the character of

seated tracts. One, where a family has resided on the tract; and two, where

profits are drawn from the land, although no family resides on it. In other

words residence, without cultivation, or cultivation without residence or

both,    constitutes   that   species   of   property   which   may   be   properly



        Simply stated, there is absolutely no evidence that the land in question



record evidence on this issue is that which is contained in the Greene County



reports and returns declare that the subject parcels of property were

assessed as seated lands and that the parcels of property were then sold, at


                                         17
J-A08020-14
J-A08021-14


                                     See

                                                               t and Return,



Therefore, viewing the evidence in the light most favorable to Appellants, we

conclude that the trial court erred in concluding that
                                                                      7
was unseated land                                                         Trial

Court Order, 5/21/13, at 1-2.

        However, we conclude that the trial court did not err in granting



failed to aver or allege that the Greene County Treasurer did not give the

then-

7

claim that the lands in question were actually unseated lands] in support of

Consol, summary judgment was proper because Appellants failed to come
forward with evidence that would create a genuine issue of material fact on
this issue. Id. This argument immediately fails, as Consol did not raise its

Consol first raised the argument in its brief in support of its motion for
                                                                 summary
judgment on the basis that the lands were actually unseated, Appellants


Further, and regardless, at the summary judgment stage, we are required to
view the evidence in the light most favorable to the nonmoving party.
Therefore, even if Consol properly raised the claim that the lands in question
were, actually, unseated, there would still exist a genuine issue of material


genuine issue of material fact as to whether the lands were, in fact, seated
or unseated.


                                     18
J-A08020-14
J-A08021-14




for lack of notice. We note that, at all relevant times, the law has provided

that

and the period of redemption has ended

property passes to the purchaser. Act of May 29, 1931, P.L. 280, § 12, as

amended, Act of June 20, 1939, P.L. 498, § 7, as amended, 72 P.S. § 5971l.

With the exception of a minor amendment that took effect in 1939, Section

12 of the 1931 Seated Tax Sale Act was essentially identical throughout the

three

Section 12 provided:


        sale] or where objections or exceptions are finally overruled
        and the sale confirmed absolutely, the validity of the
        assessment of the tax and its return for nonpayment, and
        the validity of the proceedings of the treasurer with respect
        to such sale shall not thereafter be inquired into judicially,
        in equity or by civil proceedings, by the person or persons in
        whose name such property was sold, his or her or their
        heirs, or his, her or their grantees or assigns, subsequent to
        the date of the assessment of the taxes for which such sale
        was made; and such sale, after the period of redemption
        shall be terminated, shall be deemed to pass a good and
        valid title to the purchaser as against the person or persons
        in whose name such property was sold; provided, the
        purchaser has filed the bond for surplus moneys as
        hereinafter provided.




                                     19
J-A08020-14
J-A08021-14


Act of May 29, 1931, P.L. 280, § 12, as amended, Act of June 20, 1939, P.L.

498, § 7, as amended, 72 P.S. § 5971l.8




in 1945     when the Greene County Commissioners sold the property to an

unrelated third party.9    Therefore, looking solely at the above statute, it


8
    The above-quoted statute was the law as it existed during the 1932 and

                                          as against the person or persons in


                                                 5971l note.     The 1939
amendment also added a provision that the title was in all respects as good
                                                Id.
9
    As our Supreme Court has explained:

          Under the Acts of May 9, 1889, P.L. 141, 72 P.S. § 6113,
          and May 29, 1931, P.L. 280, 72 P.S. § 5971a et seq., the
          time allowed for redemption was fixed at two years after the
          sale for unpaid taxes. By the Act of July 19, 1935, P.L.
          1321, amending the Act of 1931, the time was extended to
          five years where the property was purchased by the County
          Commissioners, but by the Act of June 20, 1939, P.L. 498,
          which further amended the Act of 1931, this special
          provision was eliminated except as to land theretofore
          purchased by the Commissioners, and the time for
          redemption was resorted in all cases to the period of two
          years after the tax sale. Then came the Act . . . of July 28,
          1941, P.L. 535. It did not change the general two year
          redemption period, but it provided that, if the property was
          purchased at the tax sale by any political subdivision, any
          person entitled to redeem the property should have the
          right to do so as long as the title thereto remained in such
          political subdivision, whether or not the [two year] period,
          during which the right of redemption existed, should have
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                                                               t in each case




parcels and     conversely   that Appellants have no property interest in the

lands whatsoever.

       Nevertheless, at all relevant times, the law has provided that   where

seated land was to be sold to recoup delinquent taxes    the county treasurer

was required to mail notice of the sale to the owner or the terre tenant of

the property.10   With the exception of an amendment that took effect in


         expired. . . . The effect, therefore, of this [1941] Act was
         that the right of redemption continued for two years after
         the tax sale whether or not the property was purchased by
         a political subdivision and during that time the property
         could not be sold, but, even after such period had expired,
         the right of redemption still remained, if a political
         subdivision had purchased the property, until the political
         subdivision actually sold the property.

Petition of Indiana County, 62 A.2d 3, 4 (Pa. 1948).

In the case at bar, the Greene County Commissioners purchased all the

and 1941. The Greene County Commissioners then sold the three parcels in
1945 to an unrelated third party. Therefore, pursuant to the Act of July 28,
                                                               at the latest
  when the Commissioners sold the properties in 1945.
10
                                                         -tenant is one who
beco
              Blasi v. Alexander, 171 A.2d 904, 907 (Pa. Super. 1961) (en
banc).
                                      21
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stated as follows:


        the newspapers], at least ten days before any such
        [Tre
        the county treasurer, by registered mail, upon the owner of
        such land, and if the whereabouts of the owner is unknown,
        such notice shall be served by registered mail upon the
        terre tenant, if any.

Act of May 29, 1931, P.L. 280, § 7, as amended, Act of June 20, 1939, P.L.

498, § 3, as amended, 72 P.S. § 5971g.11

      As our Supreme Court has held, the above statute exists to protect the

 undamental provision of both our state and federal constitutions that no

person shall be deprived of property except by the law of the land or due

                     Hess v. Westerwick, 76 A.2d 745, 748 (Pa. 1950). In




11
   The 1939 amendment added a provision to the end of the above-quoted
statute. The added provision read: Provided, however, That no such sale
shall be prejudiced or defeated and no title to property sold at such sale
shall be invalidated by proof that such written notice was not served by the
treasurer, or that such notice was not received by the owner or terre tenant
                                5971g note. Yet, as our Supreme Court held,
the 1939 amendment was unconstitutional to the extent that it purported to
relieve the treasurer of his duty to serve written notice upon the owner or
terre tenant. Hess v. Westerwick, 76 A.2d 745, 748 (Pa. 1950). The
Supreme Court held that the 1939 amendment was constitutional only to the

            Id.


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and giving it to another without notice and the opportunity to be heard. Id.

The Supreme Court explained:

        In recognition of this right to notice it has been the settled
        practice in this state extending back for over a century and
        a half to give the property owner some reasonable notice
        that his property is to be sold by process of law whether it
        be by mortgage foreclosure, execution or for tax defaults.
        Had the legislature provided for no notice at all there is little
        doubt the act would have been invalid as offending these
        fundamental provisions of both state and federal
        constitutions.

Id.

      In following, the Hess                                 . . . the requisite

notice of sale required by [the Act of May 29, 1931, P.L. 280, as amended,

72 P.S. § 5971a, et seq.] has not been given to the owner in accordance

with the act and [the owner] is without knowledge until after confirmation,



                                                                    Id. at 749.

              ales that are conducted without proper notice are thus void.

Id.

      The Commonwealth Court has explained the shifting burdens of

production and proof in actions where an individual files exceptions to the

                                                            the individual seeks



        [The Pennsylvania] Supreme Court has [held] that a
        presumption of the regularity of an official act, [(such as the


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        contrary appears. Hughes v. Chaplin, 132 A.2d 200, 202
        (Pa. 1957), quoting Beacom v. Robison, 43 A.2d 640, 643
        (Pa. Super. 1945). A property owner may create a contrary
        appearance and overcome this presumption by filing
        exceptions to the tax sale [or a complaint in ejectment],

        followed. The burden then shifts to the Bureau or the
        purchaser to show that the Bureau strictly complied with the
        notice provisions of the Law.

In re Upset Sale Tax Claim Bureau McKean County on September 10,

2007, 965 A.2d 1244, 1247 (Pa. Cmwlth. 2009) (internal quotations

omitted) (some internal citations omitted).

     At the outset, we note that

                                              s sales or actions for ejectment.

Instead, Appellants filed actions at law        and have asserted trespass,

conversion, and unjust enrichment claims against the lessee on the subject



because the subject properties were assessed in the names of prior owners




sales must be void.       See, e.g.,

Judgment, 11/5/12, at 3.

Appellants   have   failed to   comport with    the   recognized methods of

                                                         See Battisti v. Tax

Claim Bureau of Beaver County, 76 A.3d 111, 114 (Pa. Cmwlth. 2013)



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(internal quotations and corrections omitted).

     Given that Appellants have filed actions at law, it is highly doubtful

that the above-                                  which would act to relieve

Appellants of their burden of actually producing evidence that the Greene

County Treasurer failed to provide their ancestors with notice of the

                    could even potentially apply to the case at bar.        See,

e.g., In re Upset Sale Tax Claim Bureau McKean County on

September 10, 2007

overcome th[e] presumption [of the regularity of an official act] by filing

exceptions to the tax sale [or a complaint in ejectment], averring that the



the Bureau or the purchaser to show that the Bureau strictly complied with



     The above-described burden shift is somewhat sensible in the two



files exceptions to the tax sale or where the individual files an action in

ejectment. This is because, in the former, if evidence of notice (or lack of

notice) exists, the evidence would be in the possession of the bureau or

county   who are parties to the proceedings      and, in the latter, the action is

one in equity     which places an emphasis upon fairness and justice, as

opposed to form and formalities.

                                     25
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       On the other hand, in an action at law, the plaintiff bears the burden of

production and persuasion as to every element of their case. Thus, in the

case at bar, since Appellants are the plaintiffs in these trespass and

conversion cases, it would appear that Appellants bore the burden of




their burden of production and persuasion on any of these issues, Appellants

would be required to come forward with evidence that the Greene County

Treasurer did not provide their ancestors with the requisite notice of the

                    which Appellants have simply not done in this case.

       Nevertheless,   even   if   the   above-described   burden   shift   were

potentially applicable to actions at law, we conclude that Appellants failed to



                          In re Upset Sale Tax Claim Bureau McKean

County on September 10, 2007, 965 A.2d at 1247. Therefore, the trial




names of the prior owners.12       Based solely upon their contention that the


12
     Neither set of appellants have preserved any claim that the allegedly


                                         26
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properties were assessed in the names of the prior owners, Appellants

hypothesized      in their motions for summary judgment         that



See, e.g.                                                                      In

other words, Appellants have not even alleged (let alone established) that

the Greene County Treasurer, in fact, failed in its duty to properly notify

                                                   and there is absolutely no



this case, Appellants rely strictly upon suppositions and assumptions

Appellants request that this Court infer a lack of notice from the fact that the

properties were assessed in the names of the prior owners.             Appellants

cannot prevail on summary judgment in this manner.

      Under the law, for Appellants to sustain their initial burden of

                  presumption of the regularity of an                   which, in

the case at bar, is the presumption that the Greene County Treasurer




                                                                        claim
in its statement of questions involved. Thus, any such claim is waived. See
Pgh. Const. Co. v. Griffith, 834 A.2d 572, 584 (Pa. Super. 2012) (issues
not properly developed or argued in brief are waived); Pa.R.A.P. 2116(a);
Commonwealth v. Bryant, 57 A.3d 191, 196 n.7 (Pa. Super. 2012)
(claims not included in the statement of questions involved on appeal section
are waived).      Rather, throughout these proceedings and on appeal,
Appellants have claimed that the allegedly incorrect assessment was
material only insofar as it bore upon the issue of notice.


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sales    Appellants were required to at least aver or allege that the Treasurer

did not,                                                              Dolphin

Serv. Corp. v. Montgomery County Tax Claim Bureau, 557 A.2d 38, 39

(Pa. Cmwlth. 1989). Appellants have not done so. Instead, Appellants have

simply suggested in their summary judgment motions that the notices were

defective because the properties were assessed in the names of the prior

owners. This is insufficient and Appellants have thus failed to sustain their

initial burden in this case. As such, the trial court properly granted Cons

                                                                              -

motions for summary judgment.

        Orders affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/6/2014




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