          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Montgomery County Tax Claim                    :
Bureau                                         :
                                               :
               v.                              :   No. 816 C.D. 2018
                                               :   Submitted: March 12, 2019
Farrell Limited Partnership,                   :
                          Appellant            :

BEFORE:        HONORABLE ROBERT SIMPSON, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                               FILED: April 3, 2019

               This appeal involves the adequacy of notice prior to a tax sale of
property for nonpayment of real estate taxes. The property owner, Farrell Limited
Partnership (Owner), petitioned to set aside the sale, asserting inadequate posting
under the Real Estate Tax Sale Law (Tax Sale Law).1 The Montgomery County Tax
Claim Bureau (Bureau) posted the property using an existing sign. The Court of
Common Pleas of Montgomery County (trial court)2 denied Owner’s petition to set
aside the sale, upholding the method of posting. Owner contends the posting was not
conspicuous and was not reasonably calculated to be seen. In addition, Owner argues
the posted notice was deficient in that it was not readable from the road. Upon review,
we affirm the trial court’s order.




      1
          Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. §§5860.101–5860.803.
      2
          The Honorable Bernard A. Moore, Senior Judge, presided.
                                    I. Background
             Owner failed to pay certain real estate taxes on approximately two acres
of vacant, residential land it owned in New Hanover Township, Montgomery County
(Property). Owner owed $1,312.97 in county and township taxes for tax years 2014
and 2015. There was no dwelling or other structure on the Property, and it was clear
of mortgages and judgments. However, sale of the Property was pending under an
agreement of sale with an adjacent property owner.


             Based on the delinquency, the Bureau scheduled a tax sale of the
Property for September 22, 2016. More than 30 days before the sale, the Bureau
published notice in the Times Herald and The Mercury, local newspapers of general
circulation. The notice also appeared in the online version of these publications, as
well as the August 2016 edition of the Montgomery County Law Reporter.


             By certified mail, the Bureau sent notice of the sale to 2079 Big Road,
Gilbertsville, Pennsylvania, the address reflected in the tax assessment office
records. Susan Heid (Heid) signed the return receipt card. Heid was the daughter
of Louis P. Farrell (Farrell), the principal and sole partner of Owner, and had access
to the mail when he resided in Vero Beach, Florida for part of the year. Although
the Bureau received a signed return receipt card, it sent an additional notice by first
class mail more than 10 days before the sale in accordance with Section 602(e) of
the Tax Sale Law, 72 P.S. §5860.602(e). Based on its investigation through its mail
house, the Bureau sent the notice by mail to P.O. Box 279, Frederick, Pennsylvania.
This was the same address as that listed for the signator for the certified receipt card.




                                           2
             Relevant here, on behalf of the Bureau, a deputy of the sheriff’s
department (Deputy Sheriff) posted the Property with a notice on August 29, 2016.
Deputy Sheriff executed an affidavit of posting on the same date. Because there was
no structure on the Property, he posted the notice to the existing “For Sale” sign that
faced Ludwig Road.


             The tax sale occurred on September 22, 2016. After competitive
bidding, the Property sold to Andrew Bukowski (Bukowski) and Marek
Tchorzewski (collectively, Purchasers) for $13,073.37.


             Disclaiming knowledge of the sale until after it occurred, in November
2016, Owner filed a petition to set it aside based on lack of notice (Petition). The
Bureau filed an answer shortly thereafter. Purchasers intervened in March 2018.


             In May 2018, the trial court held a hearing on the Petition. The Bureau
presented the testimony of its Deputy Director and Deputy Treasurer Bill Caldwell
(Deputy Director) and Deputy Sheriff. Owner presented the testimony of Barbara
Guenst (Realtor), Farrell and Farrell’s son. Owner also presented expert testimony
of an optometrist regarding the readability of the posting from the road.


             Deputy Sheriff testified that over 12 years, he posted approximately 100
properties a month, for both sheriff sales and in general civil practice. He signed and
filed the affidavit of posting confirming he posted the Property on August 29, 2016.
See Reproduced Record (R.R.) at 178a (Affidavit). Deputy Sheriff recalled posting
the Property, specifically, that he used the existing For Sale sign facing Ludwig Road



                                          3
because it had no dwelling. R.R. at 34a-35a. He affixed the notice to the sign with
regular tape. Because the Property had no frontage on Big Road, the posting faced
Ludwig Road. The Affidavit stated the correct parcel number of the Property, but
stated the location as “Big Rd.” R.R. at 178a.


             Deputy Director testified as to his responsibilities for overseeing day-
to-day operations of the Bureau and the Treasury Department, including tax sales.
He confirmed Owner’s nonpayment of 2014 and 2015 real estate taxes which the
Bureau collected for the township and the county. He explained the Bureau obtained
information regarding delinquent properties from the tax assessment office.


             Deputy Director confirmed the Bureau provided notice by publication,
posting and mail, all of which stated the correct tax parcel number. He explained
the Bureau sent notice by certified mail to 2079 Big Road in Gilbertsville because
that was the address the assessment office had on file. Notes of Testimony (N.T.),
5/11/18, at 35. Although the Bureau received a signed green card indicating proper
service by certified mail, the Bureau also provided a 10-day notice by regular mail
using its mail house. The mail house prepared an affidavit that it sent the notice to
P.O. Box 279 in Frederick, Pennsylvania on September 8, 2016, more than 10 days
before the sale. N.T. at 43-44; R.R. at 64a-65a.


             On cross-examination, Deputy Director acknowledged the Bureau
documents stated a location of Big Road despite that it did not confirm the Property
had “a physical connection to Big Road.” N.T. at 53-54. He was also not aware
whether Heid had a connection to Owner at the time the Bureau relied on her



                                         4
signature as showing service on Owner. He clarified that the affidavit of posting
contained a clerical error in that the pre-printed part of the form indicated personal
service. Yet, the Bureau does not personally serve vacant properties like the Property.


             As one of the Purchasers, Bukowski testified how he identified and
found the Property. He attended the sale, but he did not personally view the Property
prior to purchase. He confirmed that as of the May 2018 hearing, the Bureau still
held the Property despite its sale to Purchasers in September 2016.


             Realtor, a licensed real estate broker for 41 years, testified about the
For Sale sign, physical characteristics of the Property, and her listing of the Property.
She placed the For Sale sign on the Property in early 2016, facing Ludwig Road, to
be visible to the public. To account for a gradual embankment, she placed the For
Sale sign about 21 feet away from Ludwig Road. She visited the Property regularly
because she sold the Property to a neighbor residing at 2079 Big Road, the adjacent
parcel. However, she did not learn about the tax sale until 10 days before settlement.
She authenticated photographs taken by Farrell’s son that recreated the posting to
depict how it would have looked from the street. R.R. at 179a-81a. Notably, she
testified “the sign [was] placed so it [was] visible to the public” and could be seen
by someone driving on the road. N.T. at 90. On cross-examination, she agreed that
a front door of a home, where such postings are typically placed on properties
containing a dwelling, may be much farther than 20 feet from the road.


             Farrell’s son, who resided nearby, testified he drove by the Property
almost daily to access the highway.         He also mowed the Property regularly.



                                           5
Nevertheless, he never saw the posting. He confirmed his father lives in Florida
about six months a year; otherwise, his father lived close to him. He explained that
2079 Big Road was the address of the family’s prior residence, where they also
operated a separate family business. He testified that neither he nor his siblings
participated in Owner’s business. He confirmed the corporate bureau had another
Big Road address for Owner, at 2225 Big Road. He further confirmed that mail for
the Property “went to the Post Office Box 279 in Frederick, PA. We didn’t have
mail delivery at that particular address.” N.T. at 101.


              Farrell testified he never received notice of the tax sale for the Property.
He learned about the sale after the fact, in November 2016, and he likely learned
about the mailings and posting from his son. He testified that tax notices pertaining
to other properties he owned were forwarded to his Florida address, and that notices
pertaining to the Property should have been similarly forwarded. Farrell disclaimed
any intent to avoid paying the taxes. He testified his daughter, Heid, who signed the
certified delivery card, had no authority to accept mail on Owner’s behalf. However,
Farrell acknowledged his daughter had access to the post office box and could have
retrieved mail from there.3


              Lastly, Owner presented expert testimony of an optometrist who opined
that the posting could not be read from Ludwig Road.


              Ultimately, the trial court denied the Petition. Owner timely appealed
the trial court’s order to this Court.

       3
        Because Susan Heid did not testify and Owner offered no explanation, it is unclear what
happened to the certified notice for which she signed.

                                              6
               In its 1925(a) opinion, the trial court reasoned the Bureau met its burden
of proving it complied with the notice requirements of the Tax Sale Law. After
noting the challenges for posting a property that lacks a structure, the trial court
credited the testimony regarding Deputy Sheriff as to the posting. It noted there was
no conclusive evidence that the notice did not remain intact. Based in part on
Realtor’s testimony, the trial court found “the location of the posted notice was
reasonable and reflected a good faith effort to provide notice of the sale.” Tr. Ct.,
Slip Op., 7/31/18, at 7. The posted notice also met the requirements for font size.
The trial court also found the Bureau met its burden of providing notice by
publication and by mail, having used the Big Road address to which Owner was
registered and that was on file. See R.R. at 2a (Petition to Set Aside, ¶1).


                                        II. Discussion
               On appeal,4 Owner argues the Bureau did not meet the statutory
requirements for posting the Property. Specifically, Owner asserts the posting was
deficient because it could not be read from the road. It maintains that the posted
notice must not only be visible, but readable, in order to provide notice to the public.
Its optometrist’s expert testimony that the posting could not be identified as a notice
from the road shows the notice was deficient. In addition, Owner contends the
posting was not conspicuous or placed in a manner to attract attention.


               Generally, tax sales are presumed valid. Miller v. Clinton Cty. Tax
Claim Bureau, 909 A.2d 461 (Pa. Cmwlth. 2006). However, once properly


       4
         In tax sale cases, this “Court’s review is limited to considering whether the trial court
abused its discretion, rendered a decision lacking in supporting evidence, or clearly erred as a
matter of law.” Matter of Krzysiak, 151 A.3d 292, 296 n.1 (Pa. Cmwlth. 2016).

                                                7
challenged, the taxing authority bears the burden of proving strict compliance with
the notice provisions of the Tax Sale Law. Matter of Krzysiak, 151 A.3d 292 (Pa.
Cmwlth. 2016); McElvenny v. Bucks Cty. Tax Claim Bureau, 804 A.2d 719 (Pa.
Cmwlth. 2002).


             Pursuant to Section 602(e)(3) of the Tax Sale Law, prior to a scheduled
sale, a tax bureau shall provide notice by publication, posting and mail to each
property owner. 72 P.S. §5860.602(e)(3). If any of the three notices are defective,
the tax sale is void. In re Upset Sale Tax Claim Bureau of McKean Cty. on Sept.
10, 2007, 965 A.2d 1244 (Pa. Cmwlth. 2009).


             Section 602(e)(3) of the Tax Sale Law provides notice by publication:
“shall set forth[:] (1) the purposes of such sale[;] (2) the time of such sale[;] (3) the
place of such sale[;] (4) the terms of the sale including the approximate upset price[;]
[and] (5) the descriptions of the properties to be sold as stated in the claims entered
and the name of the owner.” 72 P.S. §5860.602(e)(3). As to posting, the statute
further requires that “similar notice of the sale … shall be posted at least ten (10)
days prior to the sale.” Id. (emphasis added).


             In this appeal, Owner challenges only the notice by posting.


             A finding that a property was properly posted may be overturned only
if the finding is unsupported by the evidence. Wiles v. Washington Cty. Tax Claim
Bureau, 972 A.2d 24, 27–28 (Pa. Cmwlth. 2009). Further, as fact-finder, “the trial
court has exclusive authority to weigh the evidence, make credibility determinations



                                           8
and draw reasonable inferences from the evidence presented.”               Barylak v.
Montgomery Cty. Tax Claim Bureau, 74 A.3d 414, 417 (Pa. Cmwlth. 2013).


             The statute is silent as to the method of posting. In order to satisfy the
posting requirements of Section 602(e)(3) of the Tax Sale Law, this Court holds a
tax bureau must establish that its posted notice of property subject to an impending
tax sale was: (1) conspicuous and (2) “securely attached” to the location at which it
was placed. Wiles; see Matter of Krzysiak (tax sale notice placed on sign adjacent
to public road and affixed with high quality tape was properly posted).


                                    A. Conspicuous
             First, we consider whether the notice by posting was conspicuous.
Owner asserts it was not conspicuous because the notice was posted more than 20
feet from the road and could not be read from the street. This Court discerns no
merit in Owner’s contention.


             “Conspicuous” means posting such that the notice will be seen by the
property owner and public generally. McKean Cty., 965 A.2d at 1247; see In re Sale
of Real Estate by Montgomery Tax Claim Bureau for 1997 Delinquent Taxes, 836
A.2d 1037 (Pa. Cmwlth. 2003). Posting will meet this criterion when it is reasonably
calculated to inform the taxpayer and the public that the posted property is to be
exposed at a tax sale. O’Brien v. Lackawanna Cty. Tax Claim Bureau, 889 A.2d
127 (Pa. Cmwlth. 2005).




                                          9
             The critical question before this Court is not whether there was a better
manner to post notice, but rather whether the manner of posting actually utilized was
“reasonable and likely to inform the taxpayer as well as the public at large of an
intended real property sale.” In re Somerset Cty. Tax Sale of Real Estate Assessed
in the Name of Tub Mill Farms, Inc., 14 A.3d 180, 184 (Pa. Cmwlth. 2010) (quoting
Wiles, 972 A.2d at 28). In evaluating whether a posting was reasonable, this Court
employs a commonsense approach that depends on various factors. Wiles. “Each
case depends on the nature and location of the property and, of course, the placement
of the notice.” McKean Cty., 965 A.2d at 1248.


             As to the size of the posting, this Court has deemed an 8½" by 11" piece
of paper attached to a wood lathe with two staples appropriate. Wiles. However, a
notice folded into thirds and wrapped around a small tree branch at the side of a
house did not satisfy the reasonable notice standard. O’Brien.


             As to location, the posting must be placed where the public can
reasonably view it. See, e.g., McKean Cty. (posting on front door, 50 yards from
private road and not visible from public road, was sufficient); but see In re Upset
Price Tax Sale of Sept. 10, 1990, 606 A.2d 1255 (Pa. Cmwlth. 1992) (folded, letter-
size notice thumb-tacked to keyhole level to side door of house not reasonable).
Posting on a glass door facing the street was sufficient. Lapp v. Chester Cty., 445
A.2d 1356 (Pa. Cmwlth. 1982). However, posting a notice on a door which faced the
side yard, as opposed to the road, did not satisfy the Tax Sale Law. Ban v. Tax Claim
Bureau of Washington Cty., 698 A.2d 1386 (Pa. Cmwlth. 1997).




                                         10
               This Court also recognizes the unique challenges to posting a vacant
property, as there is no dwelling to which the posting may be affixed. In such
circumstances, a tax bureau may use a wood stake pounded into the ground. See
Tub Mill Farms. A tax bureau may also use trees. See In re Tax Sale of 2003 Upset,
860 A.2d 1184 (Pa. Cmwlth. 2004) (posting on tree across road, near property
mailbox was reasonable); In re Sale of Real Prop. for Delinquent Tax by Elk Cty.
Tax Claim Bureau, 793 A.2d 1025 (Pa. Cmwlth. 2002) (posting tree closest to road
was reasonable); Maschang v. Tax Claim Bureau of Pike Cty. (Pa. Cmwlth., No.
2286 C.D. 2013, filed Oct. 3, 2014), 2014 WL 4956245 (unreported) 5 (posting at
eye level on trees sufficient); Upset Tax Sale of Sept. 11, 2009 v. Wayne Cty. Tax
Claim Bureau (Pa. Cmwlth., No. 5 C.D. 2011, filed Jan. 5, 2012), 2012 WL 8666729
(unreported) (notice stapled to tree at end of driveway next to mailbox sufficient).


               The most common benchmark when evaluating the sufficiency of a
posting is whether the posting is visible from the road. Case law does not support
Owner’s position that a posted notice must be readable from the road. McKean Cty.
Indeed, this Court squarely rejected that contention in McKean County.


               In McKean County, the owners challenged the posted notice of a sale,
specifically, that the notice was not readable from the road. The trial court agreed,
deeming it deficient because “the notice cannot be read from the public road.” Id. at
1246 (emphasis in original). On appeal, this Court reversed, holding: “Neither the
statute nor case law requires that the notice be readable from any particular distance
or road.” Id. at 1247 (emphasis added). We adopt that reasoning here.

       5
         According to our Internal Operating Procedures, an unreported panel decision issued by
this Court after January 15, 2008, may be cited for its persuasive value. 210 Pa. Code §69.414(a).

                                               11
             In the present case, the evidence is clear and consistent that the posting
of the Property was visible from the road. In fact, the photographs Owner entered
into the record which recreated the posting show the For Sale sign and the white
posted notice upon it was visible from Ludwig Road. R.R. at 179a-81a.


             Moreover, the notice was reasonably calculated to be seen by the
public. The trial court found that Deputy Sheriff posted the Property using an
existing For Sale sign. Owner’s witness, Realtor, testified that she placed the For
Sale sign to maximize visibility from the abutting road. Specifically, she testified:
“the [For Sale] sign was posted by me to be visible to the public. So the assessment
that was made to select a position was so that it could be seen when someone drove
by from the road.” N.T. at 91. Because the notice was attached to a larger sign with
a red background, it was more noticeable. As such, the notice was conspicuous and
reasonably calculated to inform the taxpayer and the public of the upcoming tax sale.


                                B. Evidence of Posting
             The trial court’s finding that the Property was properly posted is
supported by the evidence. An affidavit of posting, which indicates the date and
time a deputy sheriff posted a property, serves as competent evidence that a property
was properly posted. Barylak.


             Here, the Affidavit shows the date of posting within the time frame
required by the Tax Sale Law. R.R. at 178a. In addition, Deputy Sheriff testified
that he specifically recalled posting the Property using the For Sale sign because
there was no dwelling. R.R. at 34a-35a. The trial court credited this testimony.



                                         12
             Evidence that the posting remained intact is not required. McKean Cty.
Moreover, the Bureau was not required to show that someone “actually saw the
posting.” Tub Mill Farms, 14 A.3d at 183. Thus, the trial court did not err in
concluding the Bureau met its burden of proving the legal sufficiency of the posting.


                                   III. Conclusion
             Based on the credited evidence, the trial court properly concluded the
posting was reasonable and likely to inform the public of the impending tax sale.
Therefore, we affirm the trial court’s order.




                                        ROBERT SIMPSON, Judge




                                          13
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Montgomery County Tax Claim             :
Bureau                                  :
                                        :
            v.                          :   No. 816 C.D. 2018
                                        :
Farrell Limited Partnership,            :
                          Appellant     :


                                      ORDER

            AND NOW, this 3rd day of April, 2019, the order of the Court of
Common Pleas of Montgomery County is AFFIRMED.




                                       ROBERT SIMPSON, Judge
