          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Centre County Tax Claim Bureau,           :
                 Appellant                :
                                          :
             v.                           :
                                          :   No. 1670 C.D. 2018
Harry Hamilton Living Trust               :   Submitted: June 28, 2019



BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON                               FILED: October 30, 2019

             Centre County Tax Claim Bureau (Bureau) appeals the August 7, 2018
order of the Court of Common Pleas of Centre County (trial court) setting aside the
2017 tax sale of property, tax parcel number 19-022-101-0000, held by Harry
Hamilton Living Trust (Trust), for unpaid real estate taxes. Upon review, we affirm.
             On September 27, 2017, the Bureau sold the property at a tax sale for
$15,664.60. Reproduced Record (R.R.) 9a & 137a. On November 22, 2017, the
Bureau filed a consolidated return of tax sale as required by Section 607(a) of the Real
Estate Tax Sale Law (RETSL), Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. §
5860.607(a) (providing that “[i]t shall be the duty of the bureau, no later than sixty
(60) days after a sale was held, to make a consolidated return to the court of common
pleas of the county”).1 R.R. 1a. The trial court, upon review of the Bureau’s filing,
concluded that the sale had been “regularly conducted” pursuant to the provisions of
the RETSL and confirmed the sale nisi. Id. 43a. The trial court in its order further
provided that “[u]nless objections or exceptions are filed within thirty (30) days after
the date of Return, said Return is to be confirmed absolute.” Id.
              On December 20, 2017, Harry Hamilton (Hamilton), proceeding pro se
on behalf of himself and as trustee for the Trust, filed a timely “Objection or Exception
Preliminarily and Permanent [sic] to the Tax Sale of Deeded Property. . . ” (Objection)
asking the trial court to void, set aside or disallow the tax sale or to be afforded an
“extension of time to adequately obtain due process and equal protection to comply
with a payment plan or file objections.” R.R. 44a-46a. In his Objection, Hamilton
asserted that the Bureau “deprived” him, as trustee, and the Trust of the trial court’s
“determination concerning a stay entered prior to the tax sale in 2016 when Hamilton
understood that a tax sale was stayed pending litigation.” Objection ¶ 4. The stay that
Hamilton referenced was entered by the trial court in Hamilton’s divorce proceeding
and provided:

              AND NOW, September 15, 2016, the property in College
              Township, Centre County, Pennsylvania . . . listed in the
              name of [Trust], being the subject of divorce proceedings in
              this court, the tax sale of said property scheduled for
              September 21, 2016, at 10:00 a.m. is stayed.




       1
         The 2017 tax sale involved claims for taxes for the 2012 tax year. The record does not
indicate what tax year was at issue in the 2016 sale. Consolidated Return of the Tax Claim Bureau
of Centre County ¶ 3; see id., Ex. A, p.2.



                                               2
Trial Court Order dated 9/15/16; R.R. 96a (emphasis added).2 Hamilton further
asserted in his Objection that the Bureau’s law firm directed the Bureau to go through
with the 2017 tax sale and “has further directed notice depriving Hamilton of due
process.”3 Objection ¶ 4. Hamilton finally averred that neither he nor the Trust was
“afforded time to comply with the tax sale payment plan.”4 Id. ¶ 7.
               Subsequently, the Bureau filed a motion requesting that the trial court
schedule a hearing to determine the merits of Hamilton’s Objection. R.R. 69a-73a.
The trial court granted the Bureau’s request and by order dated August 1, 2018,
scheduled argument to occur six days later on August 7, 2018. Id. 79a. Upon receipt
of the trial court’s scheduling order, the Bureau’s counsel submitted a continuance
request. Id. 103a. On the day of the hearing, the trial court denied the continuance
request and the Bureau sent alternate counsel to the hearing. Id. 103a & 134a. At the
hearing, the trial court judge inquired with the Bureau as to why the Bureau “just
ignored my [September 15, 2016] [o]rder staying the sale?”5 Id. 140a-41a. The
Bureau’s counsel responded that he did not believe the Bureau ignored the order but
perhaps “interpreted [the] [o]rder differently than what’s proper or perhaps how the


       2
         We note that the Hamilton’s divorce proceeding was also before the Centre County Court
of Common Pleas. However, the trial court judge that entered the order confirming the tax sale nisi
was not the same judge that entered the stay. R.R. 42a, 96a & 104a.
       3
         Hamilton’s Objection does not provide any additional detail. At the hearing on the matter,
Hamilton appeared to attempt to raise a notice issue. Hamilton explained that the deed lists Harry
Hamilton and the Trust as owners but that notice was sent only to the living trust at a Wilkes-Barre
address, located in another county, and not to Harry Hamilton at his address. R.R. 145a-46a.
       4
          No additional detail was provided regarding the alleged payment plan and Hamilton did
not, at any point during the hearing or before this Court, further develop this issue.
       5
         The September 15, 2016 order was entered by the same judge that conducted the hearing
and entered the August 7, 2018 order that this Court is reviewing. R.R. 96a & 104a.



                                                 3
[c]ourt interprets it.” Id. 141a. The Bureau indicated that it believed the order only
stayed the tax sale for September 21, 2016 and that the 2017 sale was never stayed.
Id.
              After the hearing, the trial court entered the following:

                     AND NOW, August 7, 2018, this Court having
              entered an Order on September 15, 2016, staying the tax
              sale of the subject property, which has [sic] been scheduled
              for September 21, 2016, but having not foreseen that the tax
              claim bureau would go ahead and sell the property the
              following year, notwithstanding the continued litigation,
              and for the further reason that the subject property is part
              of an ongoing divorce proceeding, which may never end,
              but in which [Hamilton’s spouse] has a vested interest
              which has been harmed by the sale of the property, it’s
              hereby ordered that the tax sale of the property in College
              Township, Centre County, Pennsylvania, Number 19-022-
              101-000, is set aside.
              ....
                     The previous stay shall remain in effect until further
              Order of this Court pending a final resolution of this matter
              by the appellate courts of Pennsylvania.

Trial Court Order dated 8/7/18 (emphasis added); R.R. 104a. The Bureau filed an
appeal with this Court.6 The trial court directed the Bureau to file its statement of
errors complained of on appeal. In its statement, the Bureau raised the following four
issues:




       6
          We note that Hamilton also filed an appeal with this Court at No. 1669 C.D. 2018
challenging the trial court’s August 7, 2018 order. See Hamilton Notice of Appeal docketed 9/14/18.
But, Hamilton failed to file a brief to support his appeal or address the Bureau’s arguments as
ordered by this Court; therefore, this Court dismissed his appeal and precluded him from
participating in the present matter at Centre Ctr. Tax Claim Bureau v. Harry Hamilton Living Trust
(Pa. Cmwlth., No. 1669 C.D. 2018, 9/17/19 & 6/21/19).

                                                4
             [1] The order upon which the Court concluded that the 2017
             upset sale had been stayed applied only to the 2016 upset
             sale, not any future such sales.

             [2] The stay from the divorce matter appearing at docket
             number 04-2534 did not apply to the Bureau and relevant
             taxing authorities, which were not participants in the
             divorce matter, were not served with process in that matter,
             and were not asked or allowed to participate in that matter
             before the order was issued.

             [3] The Bureau’s continuance request dated August 1, 2018,
             was appropriate and should have been granted because (1)
             the Bureau received a mere one week’s notice of the hearing
             on August 7, 2018, (2) the Bureau’s counsel was
             unavailable for a hearing on August 7, 2018, and (3) the
             [c]ourt initially communicated to the Bureau’s counsel that
             the continuance request was granted.

             [4] The Bureau was not required to provide notice of the
             2017 upset sale to [Hamilton’s spouse] because Mr.
             Hamilton, the trustee of the [Trust], received proper notice
             of the sale.
R.R. 127a-28a. Subsequently, the trial court entered its Rule 1925(a) statement.
Pa.R.A.P. 1925(a); Trial Court 1925(a) Statement dated 10/4/18; R.R. 131a. In its
statement, the trial court explained, “[w]e rely on our [o]rder of August 7, 2018.” Id.
¶ 1. The trial court further explained with respect to its denial of the continuance
request:

             The undersigned is a Senior Judge who visits Centre County
             only periodically. This matter was scheduled on a day when
             we were scheduled to be in Centre County and the
             suggestion that a firm the size of [the Bureau’s counsel’s
             firm] was unable to send a qualified representative to the
             hearing is surprising. Moreover, the Bureau was given the
             opportunity to present its case and this [c]ourt was well
             aware of the position of the Bureau.


                                          5
1925(a) Statement ¶ 2. We now address the arguments raised by the Bureau.7
               First, the Bureau contends that the trial court erred by setting aside the
2017 tax upset sale because the stay entered in Hamilton’s divorce proceeding applied
only to the tax sale scheduled for September 21, 2016. Bureau’s Brief at 12. In
support, the Bureau asserts that “all parties involved should have interpreted the
September 15, 2016 [order] pursuant to its plain language, which unambiguously
stayed only the September 21, 2016 tax sale.” Id. The Bureau relies on the language
in the September 15, 2016 order providing that “the tax sale of said property scheduled
for September 21, 2016, at 10:00 a.m. is stayed.” Trial Court Order dated 9/15/16;
R.R. 96a. We disagree.
               The trial court did not abuse its discretion when it interpreted its own
order as applying to the sale of the property generally, essentially concluding that
reference to the September 21, 2016 date simply identified the date of the then-
scheduled sale but did not limit the stay to that particular date. Though the order
explicitly referenced the specific date of the 2016 tax sale, the matter which caused
the trial court to impose the stay was the sale of the property, generally, as the property
was the subject of ongoing divorce proceedings. By explaining in the order that the
property is already subject to other proceedings “in this court” the trial court judge
indicated his intent to stay any sale of the property pending the outcome of those other
proceedings. It was the sale itself that was at issue, not the particular date. Indeed,
we note that generally when only a particular date is the issue, a court will usually
continue the matter, as opposed to staying the matter. Compare Continuance, Black’s

       7
         “Our review in tax sale cases is ‘limited to determining whether the trial court abused its
discretion, clearly erred as a matter of law or rendered a decision with a lack of supporting
evidence.’” In re Consol. Reports and Return by the Tax Claims Bureau of Northumberland Cty.
of Props., 132 A.3d 637, 643 n.12 (Pa. Cmwlth. 2016).



                                                 6
Law Dictionary 400 (11th ed. 2019) (defining continuance as “[t]he adjournment or
postponement of a trial or other proceeding to a future date”) with Stay, Black’s Law
Dictionary at 1709 (defining stay as “[a]n order to suspend all or part of a judicial
proceeding or a judgment resulting from that proceeding[]”). As the stated purpose
of the order was to stay the sale of the property due to the property being the subject
of a divorce proceeding, the trial court did not err or abuse its discretion in concluding
that the order was not merely continuing the date and time of the tax sale. See Radio
Corp. of Am. v. Rotman, 192 A.2d 655, 657 (Pa. 1963) (explaining that a court under
appropriate circumstances may stay its jurisdiction pending the outcome of
proceedings in another matter). As the stay related to the 2017 tax sale, the trial court
did not err in setting aside the tax sale, as the sale was in violation of an existing court
order. Section 607(d) & (e) of the RETSL, 72 P.S. § 5860.607 (d) & (e) (objections
to a tax sale may question the legality of the bureau’s proceedings in respect to such
sale and if the trial court sustains an objection it “shall, by its order or decree,
invalidate the sale and order another sale to be held in conformity with this act at such
time and under such conditions as it shall fix.”); see also City of Easton v. Marra, 862
A.2d 170, 172-73 (Pa. Cmwlth. 2004) (upholding court order to stay tax sale pursuant
to the act known as the Municipal Claims and Tax Liens Act, Act of May 16, 1923,
P.L. 207, as amended, 53 P.S. §§ 7101-7455, when the properties were subject to
divorce proceeding but the parties had not agreed to a property settlement and the sale
would disrupt the orderly distribution of the estate).
             The Bureau nevertheless contends that the trial court’s August 7, 2018
order is too broad because it cannot enter an order to exceed one year and, in support,
relies on Section 601(c) of the RETSL, 72 P.S. § 5860.601(c) (providing that the
taxing authorities of the county and of any political subdivision in the county “may



                                             7
jointly petition the court of common pleas” to stay the sale of property and, if after
hearing, in the court’s opinion there are sufficient reasons for such stay, “the court
shall have jurisdiction and power to enter an order staying such sale for any period
not exceeding one year”). Bureau’s Brief at 12-13. But, the Bureau did not raise this
issue in its statement of errors complained of on appeal and, therefore, the Bureau
waived this issue for our consideration.        Pa.R.A.P. 1925(b)(4)(vii) (providing
“[i]ssues not included in the [s]tatement and/or not raised in accordance with the
provisions [governing requirements] are waived”).
             The Bureau also complains that the September 15, 2016 order staying
the 2016 tax sale entered in the divorce proceedings “was entered without any
notification to the Bureau and relevant taxing authorities, and without the Bureau
having the opportunity to participate and/or intervene in the proceedings in order to
protect its interest in the subject property.” Bureau’s Brief at 13. But, the Bureau
conceded that “upon learning of the stay” it “abided by the order and removed the
Trust’s property from the 2016 tax upset sale.” Id. at 9. The Bureau cannot now
complain that it did not have notice or an opportunity to protect its interest in the
property when it did, in fact, have notice of the trial court’s September 15, 2016 order
imposing the stay, and removed the property from the 2016 sale which was scheduled
six days after the date of the court’s order.
             The Bureau further argues that the trial court erred by entering the
August 7, 2018 order because a tax sale cannot be stayed “indefinitely” without the
trial court adequately protecting the substantive rights of the secured creditor in the
property that is subject to the lien. Bureau’s Brief at 13-14. But, the Bureau did not
raise this issue in its statement of errors complained of on appeal, and therefore, the
Bureau waived this issue for our consideration. See Pa.R.A.P. 1925(b)(4)(vii).



                                            8
             Lastly, the Bureau argues that the trial court abused its discretion by
denying the Bureau’s continuance request. Bureau’s Brief at 15. “The decision to
grant or deny a continuance is exclusively within the discretion of the trial court, and
this Court will not disturb the trial court’s determination in the absence of an apparent
abuse of discretion.” Gillespie v. Dep’t of Transp., Bureau of Driver Licensing, 886
A.2d 317, 319 (Pa. Cmwlth. 2005). To decide whether the trial court abused its
discretion, we consider the meaning of judicial discretion:

             Judicial discretion, broadly defined, is the option which a
             judge may exercise either to do or not to do that which is
             proposed to him. As a guide to judicial action, it means a
             sound discretion exercised with due regard for what is right
             and equitable under the circumstances and under the law.
             Abuse of discretion is not merely an error of judgment;
             however, if, in reaching a conclusion, the law is overridden
             or misapplied, or the judgment exercised is manifestly
             unreasonable or the result of partiality, prejudice, bias, or
             ill will, as shown by the evidence or the record, discretion
             is abused.
Id. (emphasis added). Implicit in the concept of judicial discretion is “the rendering
of an informed decision between multiple courses of action,” which in this case is the
decision to grant or deny a continuance. Id.
             The Bureau asserts that the trial court abused its discretion when it denied
its request for a continuance because its decision was not based on an “informed
decision between multiple courses of action” but, instead, “the [t]rial court blindly
adhered to its policy of filling up at least have [sic] a day in order to get paid.”
Bureau’s Brief at 18. But, the record reflects the contrary. The trial court judge
explained in his 1925(a) Statement that he denied the Bureau’s request for a
continuance because he “visits Centre County only periodically”, and the hearing was
scheduled on a day that he was “to be in Centre County.” See 1925(a) Statement ¶ 2;


                                           9
R.R. 131a. Additionally, the trial court judge noted that the Bureau’s counsel was a
firm, the size of which he felt could, and did in fact, send an attorney to handle the
matter. Further, the trial court judge explained that he “was well aware” of the
Bureau’s position and gave the Bureau an opportunity to present its case. Id. Though
the trial court judge indicated, at the hearing, that he tried to fill up his day so that he
could get paid for “at least a half a day” given the new rules from the Supreme Court,
R.R. 140a, the Bureau fails to show how it was harmed by the trial court’s failure to
grant its request.
             The record shows that the trial court understood the Bureau’s position.
At the hearing, the trial court judge asked the Bureau’s counsel, “I have been
wondering about this, why you all have just ignored my [September 15, 2016] [o]rder
staying the sale?” R.R. 140a-41a. After giving Bureau counsel a chance to respond,
the judge stated, “I just stayed the [tax sale scheduled for] September 2[1], 2016, but
not anything else?” and the Bureau responded, “Correct. And this tax sale occurred in
2017, September there, and that sale was never stayed as far as we were aware of.”
Id. 141a. The trial court judge ultimately disagreed with the Bureau’s interpretation
of the trial court’s September 15, 2016 order imposing the stay, and the Bureau
provides no explanation as to how obtaining a continuance would have changed this
outcome. Cf. Gillespie, 886 A.2d at 319 (explaining that the trial court’s ruling
opposing a party’s continuance request, based on the opposing party’s objection,
resulted in the party losing the appeal because it could not present its case due to the
unavailability of a necessary witness). The Bureau has failed to show how the trial
court judge’s exercise of its discretion denying its request for a continuance was
“manifestly unreasonable” or the result of “partiality, prejudice, bias or ill will, as




                                            10
shown by the evidence.”            As a result, we will not disturb the trial court’s
determination.8
               Accordingly, we affirm.




                                             __________________________________
                                             CHRISTINE FIZZANO CANNON, Judge




       8
         We need not reach the Bureau’s fourth issue relating to notice to Hamilton’s spouse, Bureau
Brief at 18-19, because we are affirming the trial court’s August 7, 2018 order setting aside the tax
sale.

                                                 11
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Centre County Tax Claim Bureau,       :
                 Appellant            :
                                      :
            v.                        :
                                      :   No. 1670 C.D. 2018
Harry Hamilton Living Trust           :


                                  ORDER


            AND NOW, this 30th day of October, 2019, the August 7, 2018 order
of the Court of Common Pleas of Centre County setting aside the tax sale of the
property is AFFIRMED.




                                    __________________________________
                                    CHRISTINE FIZZANO CANNON, Judge
