          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

James Gavin                         :
                                    :
                v.                  :        No. 263 C.D. 2019
                                    :        SUBMITTED: November 14, 2019
County of Delaware Tax Claim Bureau :
                                    :
Appeal of: BID Properties           :


BEFORE:       HONORABLE P. KEVIN BROBSON, Judge
              HONORABLE ELLEN CEISLER, Judge
              HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER                                    FILED: April 17, 2020


              This case comes before the Court on appeal of the orders of the Court
of Common Pleas of Delaware County granting the petition of James Gavin to set
aside and disapprove a real estate tax sale nunc pro tunc (Petition) and overruling
the preliminary objection of Appellant, BID Properties, who had purchased the
property in question at 120 S. Chester Pike, Glenolden, Delaware County (Property).
For the reasons that follow, we vacate and remand for consideration of BID
Properties’ preliminary objection.
              In September 2017, Gavin and the Delaware County Tax Claim Bureau
entered into a written agreement (Agreement) which, in part, reflected that Gavin
would deliver funds to the Bureau to stay the tax sale of multiple parcels, including
the Property, scheduled for September 14, 2017. These preliminary funds would
postpone the scheduled tax sale until a continued date of December 14, 2017. If the
balance of taxes due were paid by December 14, the sale would be cancelled. If not,
the sale would go forward and Gavin, through his counsel, agreed that the Agreement
was controlling and that no legal action would be filed challenging the sale, staying
the sale, and/or otherwise claiming that proper notice was not provided under the
Real Estate Tax Sale Law (Law).1 On December 14, 2017, the Property was sold to
BID Properties at an upset tax sale due to outstanding taxes. The sale was confirmed
by the trial court on February 5, 2018 and the deed was recorded on March 20, 2018.
                On May 21, 2018, nearly three months after the statutory deadline,
Gavin filed his Petition. (Petition, ¶¶ 1-10, Reproduced Record “R.R.” at 2-26a.2)
In that petition Gavin avers that he made all necessary payments under the
Agreement; attached as exhibits are receipts for payments related to properties on
Irvington Road, Providence Road, Hunter Lane, Helms Manor, Secane Avenue, and
Wynnbrook Road, as well as three unidentified documents listing various amounts.
(Petition at Ex. B.) Gavin alleged that “[i]t ha[d] recently come to [his] attention . .
. that the tax claim office did not credit any of [his] payments toward the property
located under Folio # 21-00000356-00 as required and intended.” (Petition, ¶ 6.)
The Property, which was sold at tax sale for $101,000 to BID Properties, was
estimated by Gavin to have an estimated market value in excess of $240,000. Gavin
further alleged that allowing the sale to stand would “serve no legitimate purpose
other than to allow the good faith purchaser to take advantage of the [original owner]
and to deprive [him] of his financial security by way of the substantial equity in th[e]
property.” (Petition, ¶ 9.)



    1
        Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. §§5860.101 – 5860.803.

    2
     The Reproduced Record only includes page numbers on the first page of each item included.
Thus, some page numeration is omitted.



                                                2
               BID Properties filed a petition to intervene as the purchaser, which was
granted. BID Properties filed a preliminary objection to the Petition in the nature of
a demurrer and a memorandum of law. Gavin did not respond to BID Properties’
preliminary objection. After a continuance, a hearing was held before the trial court.
At the hearing, Gavin testified that he had paid all the taxes due before December
14, 2017. However, Janine Heinlein, an employee of the Bureau, testified that as of
that date a balance of $6931.88 remained. Requests for admissions were read to
Gavin, which were deemed admitted because of his failure to answer, including an
admission that he had not made all the payments due under the Agreement, although
he denied the accuracy of this statement. Gavin denied receiving any notice of the
sale from the Bureau, but testified that he first learned of the sale in February of 2018
from a person he encountered at the Property. He offered no excuse for the delay in
filing his Petition until the following May. Shortly after the hearing, the trial court
entered two orders,3 the first of which granted Gavin’s Petition4 and the second of
which overruled BID Properties’ preliminary objection.
               BID Properties appealed the trial court’s orders and the trial court
directed the filing of a concise statement of errors pursuant to Pa. R.A.P. 1925. On
December 19, 2018, the trial court filed an opinion requesting that the appeal be
quashed due to lack of appellate jurisdiction or, in the alternative, that the matter be
remanded to the trial court.




    3
      The trial court’s opinion erroneously states that it disposed of the Petition and preliminary
objection in one order.

    4
     As discussed below, the order regarding the Petition went well beyond permitting Gavin to
proceed nunc pro tunc.



                                                3
                On appeal, BID Properties raises five questions which may be
summarized as follows: (1) whether the trial court erred in granting the Petition
because it was untimely and because there was a lack of supporting evidence; (2)
whether BID Properties’ preliminary objection should have been afforded separate
hearings and been adjudicated prior to a determination of the Petition; and (3)
whether the trial court deprived BID Properties of procedural due process by not
affording it the opportunity to pursue the merits of its claim.
                We first address the trial court’s view that its order overruling BID
Properties’ preliminary objection and granting Gavin’s Petition was interlocutory
and therefore not appealable. We disagree. The order of the trial court granted the
entirety of the relief sought by Gavin in his Petition: the setting aside of the tax sale
and directing the Bureau to provide an accounting of all payments made in
accordance with the agreement. (BID Properties’ Br. at App. A; compare with
Gavin’s Petition, R.R. at 6a.) Insofar as such an order “disposes of all claims and of
all parties” it is final pursuant to Rule 341(b)(3) of the Pennsylvania Rules of
Appellate Procedure.          Pa. R.A.P. 341(b)(3). Therefore, we have appellate
jurisdiction.
                Turning to the merits, in its Rule 1925(a)5 opinion the trial court offered
no explanation for proceeding to a hearing on the merits before acting on BID
Properties’ preliminary objection, nor any analysis explaining its decision to
overrule them. We note that Gavin failed to file any response to the preliminary
objection, and thus to the extent that facts were pled in the preliminary objection,
they are to be deemed admitted. See Rule 1029(b) of the Pennsylvania Rules of Civil
Procedure, Pa. R.C.P. No. 1029(b) (“[a]verments in a pleading to which a responsive


    5
        Pa. R.A.P. 1925(a).


                                              4
pleading is required are admitted when not denied specifically or by necessary
implication”). Similarly, the trial court made no findings of fact and offered no
analysis supporting its decision to allow the Petition to go forward nunc pro tunc, let
alone any findings or analysis of its grant of relief on the merits. Rather, it requested
that, if appellate jurisdiction was found to exist, the case be remanded so that the
trial court could essentially start anew. Although we might be able to decide the
present appeal based solely on the burdens of proof attendant to the issues before us,
we agree that remand is appropriate so that we can exercise further appellate review,
if necessary, based on findings of fact rather than mere evidence, some of which is
disputed, and we can consider the trial court’s analysis in reaching its conclusions.
             Accordingly, we vacate the trial court’s orders denying BID Properties’
preliminary objection and granting Gavin’s Petition and remand for further findings
of fact and conclusions of law based on the current record. First, the trial court shall
determine whether this action should be allowed to proceed nunc pro tunc. If so, the
trial court shall decide the preliminary objection. If these are overruled, BID
Properties shall have the opportunity to file an answer to the Petition prior to the trial
court proceeding on the merits.




                                         _____________________________________
                                         BONNIE BRIGANCE LEADBETTER,
                                         Senior Judge




                                            5
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

James Gavin                         :
                                    :
                v.                  :          No. 263 C.D. 2019
                                    :
County of Delaware Tax Claim Bureau :
                                    :
Appeal of: BID Properties           :


                                      ORDER


              AND NOW, this 17th day of April, 2020, the orders of the Court of
Common Pleas of Delaware County denying Appellant BID Properties’ preliminary
objection and granting Appellee James Gavin’s petition to proceed nunc pro tunc
and set aside tax sale are VACATED and the matter is REMANDED for further
proceedings in accordance with the foregoing opinion.
              Jurisdiction is relinquished.



                                         _____________________________________
                                         BONNIE BRIGANCE LEADBETTER,
                                         Senior Judge
