J-A09043-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

TOBY L. SPIGELMYER,                              IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

CHARLES MAYNARD COLONY, DOROTHY
I. COLONY, AND ERIC E. EMINHIZER,
PARTNERS, T/D/B/A FERGUSON VALLEY
HARDWOODS, CHARLES MAYNARD
COLONY, T/D/B/A HAWKWING
PARTNERSHIP AND DOBERMAN GROUP,
INC.

                            Appellees                No. 1602 MDA 2015


                  Appeal from the Order Entered April 28, 2015
                 in the Court of Common Pleas of Mifflin County
                    Civil Division at No.: CP-44-CV-581-2014


BEFORE: FORD ELLIOTT, P.J.E., JENKINS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                               FILED JULY 26, 2016

        Appellant, Toby L. Spigelmyer, appeals from the trial court’s order

denying his motion for summary judgment and granting the motion for

summary judgment filed by Appellees, Charles Maynard Colony et al., in this

quiet title action.      After review, we reverse the trial court’s order and

remand for entry of summary judgment in favor of Appellant.

        We take the relevant facts and procedural history of this case from the

trial court’s April 22, 2015 opinion and our independent review of the

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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certified record. This action centers on a 348.12-acre unimproved tract of

land located in Mifflin County, Pennsylvania (Property).      On December 8,

1794, the Property was warranted to William Reiley.           Robert A. Means

acquired title to the Property on November 4, 1847.          Mr. Means died in

1887, and in his will, he devised an undivided one-half interest in the

Property to each of his sons, R. Howard Means a/k/a Robert H. Means, and

Francis A. Means.       Appellees are the assignees of the heirs of R. Howard

Means a/k/a Robert H. Means and Francis A. Means.

       Real estate taxes on the unseated1 Property became delinquent, and

the treasurer of Mifflin County offered it for sale on June 13, 1932.       The
____________________________________________


1
  By way of background, this Court has explained with respect to unseated
land:

       The distinction of seated and unseated land was part of
       Pennsylvania tax assessment law prior to 1961. Unseated land
       was unoccupied and unimproved whereas seated land contained
       permanent improvements as indicate a personal responsibility
       for taxes.

                                         *       *       *

          The Act [of the 28th of March, 1806,] required persons     who
       acquired unseated land to furnish a statement describing      that
       land to the county commissioners, or the board for             the
       assessment and revision of taxes, so that a proper             tax
       assessment could be levied.

                                     *       *       *

       . . . [S]eated lands are assessed in the name of the owners while
       unseated lands are assessed by survey or warrant numbers,
       regardless of the owners whose names if used at all are only for
(Footnote Continued Next Page)


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published notice of sale identified William Reiley as the warrantee of the

Property, and “R. H. Means” as owner of the Property, but did not identify

Francis A. Means as co-owner.2            (See Trial Court Opinion, 4/22/15, at 3,

Exhibit A).   It appears Francis A. Means was deceased at the time of the

1932 sale; his heirs at the time were his daughter, Bessie B. M. Reynolds,

and his granddaughters, Elizabeth M. Reed, Sarah F. Reed, and Mary Kyle

Reed.     (See Appellees’ Answer, 6/17/14, at unnumbered page 3).             The

Mifflin County Commissioners purchased the Property at the tax sale

because no bidders reached the threshold price.             The Property was not

redeemed in the two-year redemption period that followed.            On June 26,

1934, the Mifflin County Commissioners recorded a deed for the Property.




                       _______________________
(Footnote Continued)

        the purpose of description. This statement of the law . . .
        highlights the necessity for informing the county commissioners
        of any changes to the real estate, because the commissioners, in
        assessing tax values to a particular warrant, are not concerned
        with names of the owners, only the property itself. Therefore, if
        the county commissioners have not been informed of [any
        changes to the real estate], the tax assessment is levied against
        the property as a whole.

Herder Spring Hunting Club v. Keller, 93 A.3d 465, 466, 468-69 (Pa.
Super. 2014), appeal granted, 108 A.3d 1279 (Pa. 2015) (citations and
footnote omitted).
2
  The trial court and the parties agree that the notice comported with
applicable statutory law in effect at that time, which required that the notice
identify the names of the warrantees or owners. (See Trial Court Opinion,
4/22/15, at 5-6, 12; Appellant’s Brief, at 10, 14; Appellees’ Brief, at 4, 10).



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On January 1, 1949, title to the Property was transferred to the Mifflin

County Tax Claim Bureau by operation of law.

       Sixty-four years later, on February 28, 2013, the bureau held an

auction and Appellant was the successful bidder at $220,000.00.                He

recorded the deed for the Property on August 19, 2013.

       On May 1, 2014, Appellant filed this action to quiet title seeking a

declaration that he acquired all of the right, title and interest in the Property.

Appellees filed an answer on June 17, 2014, requesting a declaration that

Appellant did not acquire any of the interest in the real estate formerly

owned by Francis A. Means.              After the parties filed cross-motions for

summary judgment, the court issued a memorandum and order granting

summary judgment in favor of Appellees.             Appellant filed a motion for

reconsideration, which the court denied on August 24, 2015.           This timely

appeal followed.3

    Appellant raises three issues for this Court’s review:

       1. Whether the [trial] court committed an error of law by failing
       to hold that [Appellant], by virtue of a [d]eed from [the] County
       of Mifflin, had acquired all of the right, title and interest of the
       owners of the Reiley Warrant property at the time of the 1932
       tax sale, when it was undisputed that the sale had been
       conducted in full compliance with the then-applicable statute
       governing the sale of unseated lands for delinquent taxes and
____________________________________________


3
   Pursuant to the trial court’s order, Appellant filed a timely concise
statement of errors complained of on appeal on October 2, 1015. See
Pa.R.A.P. 1925(b). The trial court entered an opinion on October 20, 2015.
See Pa.R.A.P. 1925(a).



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      existing Pennsylvania Supreme Court precedent mandates a
      holding that such compliance results in passage of complete
      title?

      2. Whether the [trial] court committed an error of law and an
      abuse of discretion in affording the protection of the due process
      clause of the Fourteenth Amendment to the United States
      Constitution to the owners of a one-half (1/2) interest in the
      Reiley Warrant property at the time of a 1932 tax sale, based
      upon its application of certain decisions of the United States
      Supreme Court, dealing with notice requirements of the due
      process clause, absent any allegations or record evidence that
      the owners did not have actual notice of the sale or that their
      identities or whereabouts were known to or easily discoverable
      by the county treasurer?

      3. Whether the [trial] court committed an error of law and an
      abuse of discretion by retroactively applying certain decisions of
      the United States Supreme Court, dealing with notice
      requirements of the due process clause of the Fourteenth
      Amendment to the United States Constitution, to a tax sale
      which occurred from eighteen (18) to seventy-four (74) years
      prior to the decisions, where such application does not further
      the purpose of the decisions, is unfairly prejudicial to
      [Appellant,] and will detrimentally affect the administration of
      justice?

(Appellant’s Brief, at 4-5).

      Our standard of review of an order granting summary judgment
      requires us to determine whether the trial court abused its
      discretion or committed an error of law[,] and our scope of
      review is plenary.    We view the record in the light most
      favorable to the nonmoving party, and all doubts as to the
      existence of a genuine issue of material fact must be resolved
      against the moving party. Only where there is no genuine issue
      as to any material fact and it is clear that the moving party is
      entitled to a judgment as a matter of law will summary
      judgment be entered.

PHH Mortgage Corp. v. Powell, 100 A.3d 611, 616 (Pa. Super. 2014)

(citations and internal quotation marks omitted).



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      We begin by discussing Appellant’s second and third issues, because

they are dispositive of this appeal.    In these issues, Appellant argues that

the trial court erred in it its application of three United States Supreme Court

decisions to the instant case, to invalidate the 1932 tax sale.               (See

Appellant’s Brief, at 16-23).

      Specifically, the trial court relied on Mullane v. Cent. Hanover Bank

& Trust Co., 339 U.S. 306 (1950), Mennonite Bd. of Missions v. Adams,

462 U.S. 791 (1983), and Jones v. Flowers, 547 U.S. 220 (2006), in

reaching its conclusion that the 1932 tax sale was invalid with respect to

Francis A. Means’ one-half interest. (See Trial Ct. Op., 4/22/15, at 6-12).

It determined that the sale violated the due process clause of the Fourteenth

Amendment to the United States Constitution because notice of the sale was

not provided to Francis A. Means. (See Trial Ct. Op. 10/20/15, at 3).

      We first address Appellant’s contention that the trial court erred in

applying Mullane, Mennonite Board, and Jones retroactively where the

tax sale predates these decisions.     (See Appellant’s Brief, at 11, 20).      In

Harper v. Virginia Dep’t of Taxation, 509 U.S. 86 (1993), the United

States Supreme Court adopted a general rule with respect to retroactivity in

both the civil and criminal contexts. Specifically, it held:

      [w]hen this Court applies a rule of federal law to the parties
      before it, that rule is the controlling interpretation of federal law
      and must be given full retroactive effect in all cases still open on
      direct review and as to all events, regardless of whether such
      events predate or postdate our announcement of the rule.



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Id. at 97 (articulating rule fairly reflecting position of majority of Justices in

James B. Beam Distilling Co. v. Georgia, 501 U.S. 529 (1991)). Thus,

we conclude that retroactive application of the controlling interpretation of

due process requirements was appropriate in this case, regardless of the

timing of the tax sale.    See id.   However, this does not end our inquiry;

Appellant also maintains that the trial court misapplied the holding of

Mullane and its progeny in finding the notice inadequate. (See Appellant’s

Brief, at 16-20). After review, we agree.

      The Due Process Clause of the Fourteenth Amendment provides that

no state shall “deprive any person of life, liberty, or property, without due

process of law.”    U.S. Const. amend. XIV, § 1.         Mullane involved the

Supreme Court’s evaluation of the adequacy of notice of judicial settlement

of accounts provided to beneficiaries of a common trust fund by the trustee.

The Court explained:

            An elementary and fundamental requirement of due
      process in any proceeding which is to be accorded finality is
      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. The
      notice must be of such nature as reasonably to convey the
      required information, and it must afford a reasonable time for
      those interested to make their appearance. But if with due
      regard for the practicalities and peculiarities of the case these
      conditions are reasonably met the constitutional requirements
      are satisfied. . . .

            But when notice is a person’s due, process which is a mere
      gesture is not due process. The means employed must be such
      as one desirous of actually informing the absentee might
      reasonably adopt to accomplish it. The reasonableness and

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     hence the constitutional validity of any chosen method may be
     defended on the ground that it is in itself reasonably certain to
     inform those affected, or, where conditions do not reasonably
     permit such notice, that the form chosen is not substantially less
     likely to bring home notice than other of the feasible and
     customary substitutes.

                             *    *    *

           This Court has not hesitated to approve of resort to
     publication as a customary substitute in another class of cases
     where it is not reasonably possible or practicable to give more
     adequate warning. Thus it has been recognized that, in the
     case of persons missing or unknown, employment of an
     indirect and even a probably futile means of notification is
     all that the situation permits and creates no constitutional
     bar to a final decree foreclosing their rights.

           Those beneficiaries represented by appellant whose
     interests or whereabouts could not with due diligence be
     ascertained come clearly within this category. As to them the
     statutory notice [by publication] is sufficient. . . .

          Nor do we consider it unreasonable for the State to
     dispense with more certain notice to those beneficiaries
     whose interests are either conjectural or future or,
     although they could be discovered upon investigation, do
     not in due course of business come to knowledge of the
     common trustee. . . .

Mullane, supra at 314-15, 317 (holding published notice was not sufficient

to inform beneficiaries of trust whose names and addresses were known, but

that notice was sufficient as to those who were unknown) (citations and

quotation marks omitted; emphases added).

     In Mennonite Board, the Court interpreted Indiana’s tax sale statute

and addressed the issue of “whether notice by publication and posting

provides a mortgagee of real property with adequate notice of a proceeding

to sell the mortgaged property for nonpayment of taxes.”         Mennonite

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Board, supra at 792. Of significance was the fact that the mortgagee had a

recorded security interest. See id. at 798. The Court determined:

             Since a mortgagee clearly has a legally protected property
       interest, he is entitled to notice reasonably calculated to apprise
       him of a pending tax sale. When the mortgagee is identified in a
       mortgage that is publicly recorded, constructive notice by
       publication must be supplemented by notice mailed to the
       mortgagee’s last known available address, or by personal
       service.    But unless the mortgagee is not reasonably
       identifiable, constructive notice alone does not satisfy the
       mandate of Mullane.

Id. (citation and footnote omitted) (emphasis added).

       Finally, in Jones, the Court considered whether, where notice of a tax

sale is mailed to a property owner and returned undelivered, such that the

government becomes aware that the attempt at notice had failed, due

process requires it to take additional reasonable steps to provide notice

before selling the owner’s home in a tax sale. See Jones, supra at 223,

227.    The Court noted that, after the state received the returned form

indicating that the property owner had not received notice, it did nothing.

See id. at 234. Based on these facts, the Court concluded “the State should

have taken additional reasonable steps to notify [the property-owner], if

practicable to do so.”      Id. (emphasis added).     The Court also indicated

that “if there were no reasonable additional steps the government could

have taken upon return of the unclaimed notice letter, it cannot be faulted

for doing nothing.” Id.

       Here, there is nothing in the record to indicate that county officials

were aware of Francis A. Means’ interest in the unseated Property at the

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time of the 1932 tax sale, or that it was “reasonably possible or practicable

to give more adequate warning” to his heirs.         Mullane, supra at 317.

Appellees have not demonstrated that Francis A. Means or his heirs complied

with their affirmative statutory duty to provide the county with notification of

their interest in the Property so that a proper tax assessment could be

levied. See Herder Spring Hunting Club, supra at 466. They have not

presented any evidence indicating that county officials knew the identities or

whereabouts of Francis A. Mean or his heirs. (See Appellees’ Brief, at 3-15).

Thus, the case at bar is distinguishable from the situations discussed in

Mullane, Mennonite Board, and Jones, where the relevant actors were

aware of the identities of the affected individuals and failed to provide them

with adequate notice.     We therefore conclude that, in the instant case,

“employment of an indirect and even a probably futile means of notification

is all that the situation permit[ted] and create[d] no constitutional bar to a

final decree foreclosing [Appellees’] rights.”      Mullane, supra at 317

(citation omitted).   Because we find that notice of the tax sale was not

constitutionally infirm, we reverse the order of the trial court and direct

entry of summary judgment in favor of Appellant.

      Order reversed. Case remanded for proceedings consistent with this

memorandum. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/26/2016




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