              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


U.S. National Bank Association,             :
as Trustee, as successor in interest to     :
Wachovia Bank, N.A. as trustee for          :
the Bond Insurer and not in its             :
individual capacity, by and through its     :
servicing agent, Linebarger Goggan          :
Blair and Sampson, LLP                      :
                                            :   No. 2237 C.D. 2014
             v.                             :
                                            :   Argued: October 5, 2015
United Hands Community Land Trust,          :
A Pa Non-Profit Corporation,                :
Delaware Valley Community                   :
Reinvestment Fund and Commonwealth          :
of Pennsylvania Bureau of Compliance/       :
Clearance Support                           :
                                            :
Appeal of: Wesley Cascone                   :



BEFORE:      HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION BY
JUDGE McCULLOUGH                                          FILED: December 15, 2015


             Wesley Cascone (Cascone) appeals from the October 29, 2014 order of
the Court of Common Pleas of Philadelphia County (trial court) denying his petition
to set aside a sheriff’s sale. The predominate issue in this case is whether the petition
for a sheriff’s sale and rule to show cause were posted on the property in accordance
with statutory requirements. After review of Cascone’s brief, the record, and the trial
court’s opinion, we reverse and remand.
                                         Background
               The facts and procedural history of this case may be summarized as
follows.
               On May 31, 2013, U.S. Bank National Association, as trustee and
successor in interest to various private and public entities (Trustee), filed a Petition
for Rule to Show Cause why Property Should not be Sold Free and Clear of all Liens
and Encumbrances (the Petition). According to Trustee, by Special Ordinance No.
970168 of June 1997, the City of Philadelphia and the School District of Philadelphia
sold a portfolio of delinquent real estate tax liens to the Philadelphia Authority for
Industrial Development (PAID), empowering the latter to recover delinquent taxes
through lawful means. Thereafter, PAID sold the portfolio to Trustee, and Trustee
received authorization to recover upon the tax liens by all lawful means, including the
initiation and prosecution of foreclosure actions. (Reproduced Record (R.R.) at 10a.)
               In the Petition, Trustee averred that there were real estate taxes in the
amount of $1,314.44 owing on the premises at 2021 East Susquehanna Avenue,
Philadelphia (the Property), and sought to sell the Property pursuant to what is
commonly referred to as the Municipal Claims and Tax Liens Act (MCTLA).1 At the
time the Petition was filed, the record owner of the Property was United Hands
Community Land Trust (United Hands), as reflected by deed dated December 15,
1989. (Trial court op. at 1.)
               Trustee filed affidavits of service, indicating that it posted the Property
with the Petition on September 3, 2013, and served United Hands by certified and
regular mail. On October 11, 2013, the trial court granted Trustee’s Petition, entered

      1
          Act of May 16, 1923, P.L. 207, as amended, 53 P.S. §§7101-7505.



                                                2
judgment in favor of Trustee in the amount of $1,595.48, and permitted the Property
to be sold at a sheriff’s sale. After Trustee filed an affidavit noting that service of the
notice of sale was made by first-class regular mail, the Property was sold, on
February 20, 2014, at a sheriff’s sale to VRTX Company for $49,000.00. Id. at 2.
             On July 18, 2014, Cascone filed a petition to set aside the sheriff’s sale,
averring that he had resided next door to the Property since March 2007 and owns six
other lots and buildings on the block. Cascone contended that on August 19, 2013,
(approximately two and one-half months after the Petition was filed, but prior to
service of the notice of sale), he filed an action to quiet title to the Property against
United Hands based upon a theory of adverse possession. Cascone further stated that
he filed a lis pendens along with his complaint to quiet title. Id. at 2-3.
             In addition, Cascone asserted that on May 30, 2014, (approximately
three months after the Property was sold at the sheriff’s sale), a different trial judge
issued him a deed granting him title to the Property.          Cascone averred that he
recorded the deed on June 3, 2014. In his petition, Cascone contended that he never
received notice that the Property would be sold at a sheriff’s sale. Id. at 2-3.
             Trustee filed an answer to the petition to set aside, asserting that Cascone
was not served with the Petition because he did not properly register or record his
interest and, thus, did not have standing to contest the sale. Trustee also contended
that service had been made on all the individuals who had registered or recorded
interests in the Property. Id. at 3.
             On October 28, 2014, the trial court convened a hearing and heard
argument and evidence on the merits of the case. Cascone argued that the Property
was not posted and that he did not receive notice of the sale. In response, Trustee
argued that it complied with the notice requirements of the MCTLA, the Property was



                                            3
properly posted, and all the individuals entitled to notice received notice. Trustee
also asserted that Cascone’s lis pendens had not been indexed correctly or properly
registered or recorded and Cascone did not receive title to the Property until after the
sheriff’s sale; consequently, he had no standing to contest the sale. The parties then
called witnesses in support of their positions. Id.
             Keith Muhammed testified that he is a process server who posted the
Property with the Petition on September 3, 2013, at approximately 11:39 a.m.
“Muhammed could not recall exactly where he posted the Property, but stated that he
had signed the affidavit truthfully and accurately. Muhammed testified that when a
property is fenced, or covered in debris, he finds ‘the best place’ on the fence to affix
the packet, and that he uses duct tape.” Id. at 4.
             Joseph Giglio testified that he has been a title clerk for over twenty
years. He testified that the docket in Cascone’s quiet title action did not have a line
of information stating that a lis pendens had been filed. Id.
             Cascone testified that he lives at 2020 East Susquehanna Avenue, and
that he recalled September 3, 2013, because his son moved in with him on that day.
Cascone stated that from 9:30 a.m. until approximately 11:30 a.m., he and his son
unpacked the car. Cascone said that, during this time, he did not observe anyone
posting the Property or see a posting on the Property. Id.
             Kristen Flanagan, Cascone’s girlfriend, testified that she lived with
Cascone in September of 2013. Flanagan testified that on September 3, 2013, she
helped Cascone’s son move into the house after Cascone had left for work in the
morning. She said that she did not see the Property posted on that day or hear any
noise from her dogs, who ran in the Property’s vacant lot. Id.




                                            4
                Evelyn Velez testified that she resides at 2031 East Susquehanna
Avenue. Velez stated that she feeds stray cats on the block at least four times a day,
at 7:30 a.m., 12:30 p.m., 3:00 p.m., and occasionally at 6:00 p.m. She did not recall
seeing anything posted on the Property on September 3, 2013. Id.
                By order dated October 29, 2014, the trial court denied Cascone’s
petition to set aside. Cascone filed a motion for reconsideration on November 10,
2014, contending that after the October 28, 2014 hearing, his counsel contacted the
prothonotary’s office to determine why the lis pendens did not appear of record.
Cascone’s counsel stated that the lis pendens had been filed correctly, but the
prothonotary incorrectly processed it for filing and indexing. On November 13,
2014, the trial court denied Cascone’s motion for reconsideration and, on November
26, Cascone filed a timely appeal to this Court. Id. at 5.
                In its Pa.R.A.P. 1925(a) opinion, the trial court concluded that Cascone
did not have standing to contest the sale. Referencing section 39.1 of the MCTLA,
53 P.S. §7193.1,2 the trial court first found that Cascone did not register his interest in
the Property and determined that even if the lis pendens had been properly indexed, it
would not suffice to give notice to third-parties like Trustee. The trial court further
found that Trustee complied with the notice requirements of section 39.2 of the
MCTLA, 53 P.S. §7193.2,3 finding, inter alia, that Muhammed testified that he
posted the Property with the Petition on September 3, 2013, at 11:39 a.m., and the
affidavit of service confirmed the posting. (Trial court op. at 6-9).4

       2
           Added by the Act of December 14, 1992, P.L. 850, 53 P.S. §7193.1.

       3
           Added by the Act of December 14, 1992, P.L. 859, 53 P.S. §7193.2.

       4
        The trial court also stated that it could not determine whether Cascone’s petition to set
aside was filed timely, because the evidence was unclear as to when, or if, the sheriff’s deed was
(Footnote continued on next page…)

                                                 5
(continued…)

acknowledged. The trial court noted that the petitions demonstrated that VRTX Company “settled”
with the sheriff’s department on March 20, 2014, and Cascone filed his petition to set aside on July
18, 2014. (Trial court op. at 6.)

       The parties do not discuss this issue in their submissions to the Court, and it may be a
question of fact for the trial court to resolve on remand. Nonetheless, without ruling on the matter,
we note that it appears Cascone’s petition was filed timely.

        Pursuant to section 31.2(b) of the MCTLA, the deed cannot be acknowledged and delivered
to a purchaser until at least thirty days after the purchaser pays the full purchase price for the
property. Section 31.2(b) of the MCTLA, added by the Act of March 15, 1956, P.L. (1955) 1274,
53 P.S. §7283(b) (“The deed to the purchaser shall be executed, acknowledged and delivered as in
other real estate sales by the sheriff. Deeds for property exposed for any sale under this section
shall not be executed, acknowledged and delivered any sooner than thirty days nor later than one
hundred and twenty days after the purchaser pays the balance due to the sheriff for any sale held
under this section.”). Under section 39.3 of the MCTLA, a party wishing to set aside a sheriff’s sale
must file a petition within three months of the date of the acknowledgment. See section 39.3 of the
MCTLA, added by the Act of December 14, 1992, P.L. 859, 53 P.S. §7193.3 (“All parties wishing
to contest the validity of any sale conducted pursuant to section 31.2 of this act, including the
sufficiency of any notice, and any party claiming to have an interest in the premises which was not
discharged by the sale must file a petition seeking to overturn the sale or to establish the interest
within three months of the acknowledgment of the deed to the premises by the sheriff.”).

        Therefore, a party will have, at the very least, four months from the date the full purchase
price is paid to file a timely petition to set aside (thirty days for the acknowledgment to occur plus
three months from the date of the acknowledgment). Because VRTX Company paid the full
purchase price on March 20, 2014, and Cascone filed his petition on July 18, 2014, Cascone’s
petition appears to have been filed timely.




                                                  6
                                        Discussion
  I. Whether the trial court erred in concluding that Cascone lacked standing?
              On appeal to this Court, Cascone argues that the trial court erred in
concluding that he lacked standing to file a petition to set aside the sheriff’s sale.
Cascone contends that he possesses standing because: the evidence did not establish
that the Property was properly posted; he obtained title to the Property and recorded
the deed; and he filed a lis pendens in the quiet title action.


            A. Posting the Petition on the Property’s “most public part”
              Pursuant to section 39.2(a)(1) of the MCTLA, notice must be
effectuated, among other ways, “[b]y posting a true and correct copy of the petition
and rule on the most public part of the property[.]” 53 P.S. §7193.2(a)(1). Cascone
first contends that Muhammad’s testimony regarding the posting of the Property was
inadequate to support a finding that the Property was properly posted.               More
specifically, Cascone argues that Muhammad, even after visiting the Property prior to
the hearing, testified that he could not recall where he posted the Petition on the
Property. Cascone also points to testimony from his witnesses who stated that they
never saw the Property posted with the Petition. For these reasons, Cascone contends
that “there is no rational support in the record to find that service was proper,”
(Cascone’s brief at 13), and, therefore, he has standing to set aside the sheriff’s sale.
              In response, Trustee argues that service was properly made on the
Property and to all those individuals who had a registered or recorded interest in the
Property. On this basis, Trustee contends that Cascone does not possess standing to
file his petition.




                                             7
             “This Court’s review in tax sale cases is whether the common pleas
court abused its discretion, erred as a matter of law or rendered a decision that was
unsupported by substantial evidence.” In re Consolidated Return of Real Estate Tax
Sale, 74 A.3d 1089, 1092 n.6 (Pa. Cmwlth. 2013). “Substantial evidence has been
defined as such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Radhames v. Tax Review Board, 994 A.2d 1170, 1177 (Pa.
Cmwlth. 2010). However, evidence proving “suspicion and conjecture” does not
constitute substantial evidence as a matter of law. Barnes v. Department of Justice
and the Commissioner of State Police, 452 A.2d 593, 595 (Pa. Cmwlth. 1982).
Stated differently, “[s]ubstantial evidence is more than a mere scintilla and must do
more than create a suspicion of the existence of the fact to be established.” Shive v.
Bellefonte Area Board of School Directors, 317 A.2d 311, 313 (Pa. Cmwlth. 1974).
             In general, a petition to set aside a sheriff sale is governed by the
Pennsylvania Rules of Civil Procedure which provide, in pertinent part, that “the
court, may upon proper cause shown, set aside the sale and order a resale or enter any
other order which may be just and proper under the circumstances.” Pa.R.C.P. No.
3132. See also Allegheny County v. Golf Resort, Inc., 974 A.2d 1242, 1245 (Pa.
Cmwlth. 2009). By its very nature, a petition to set aside a sheriff sale is an equitable
proceeding, governed by equitable principles, and appellate review of equitable
matters is limited to a determination of whether the trial court committed an error of
law or abused its discretion. Golf Resort, Inc., 974 A.2d at 1245. Notably, “[t]he
purpose of sheriff’s sales under the [MCTLA] . . . is not to strip the owner of his or
her property but to collect municipal claims.” City of Philadelphia v. Manu, 76 A.3d
601, 606 (Pa. Cmwlth. 2013).




                                           8
            Section 39.1 of the MCTLA requires an owner of real property in the
City of Philadelphia (City) having a lien, claim, or interest to “register a notice of
interest with the department of [the City] responsible for collection of tax and
municipal claims stating his name, residence and mailing address and a description of
the real property in which the person has an interest.” 53 P.S. §7193.1. Sections
39.2(a) and (b) of the MCTLA, governing notice and standing, state as follows:

            (a) In cities of the first class, notice of a rule to show cause
            why a property should not be sold free and clear of all
            encumbrances issued by a court pursuant to a petition filed
            by a claimant under section 31.2 of this act shall be served
            by the claimant upon owners, mortgagees, holders of
            ground rents, liens and charges or estates of whatsoever
            kind as follows:

            (1) By posting a true and correct copy of the petition
            and rule on the most public part of the property;

            (2) By mailing first class mail to the address registered by
            any interested party pursuant to section 39.1 of this act a
            true and correct copy of the petition and rule; and

            (3) By reviewing a title search, title insurance policy or tax
            information certificate that identifies interested parties of
            record who have not registered their addresses pursuant to
            section 39.1 of this act, the city shall mail by first class mail
            and either by certified mail, return receipt requested, or by
            registered mail to such addresses as appear on the
            respective records relating to the premises a true and correct
            copy of the petition and rule.

                                    *      *      *

            (b) No party whose interest did not appear on a title
            search, title insurance policy or tax information certificate
            or who failed to accurately register his interest and address
            pursuant to section 39.1 of this act shall have standing to
            complain of improper notice if the city shall have
            complied with subsection (a) of this section. This

                                           9
              provision shall not apply if the mortgage or interest was
              otherwise properly recorded in the Office of the Recorder of
              Deeds and the document contains a current address
              sufficient to satisfy the notice requirements of this section.
              Notwithstanding any other requirement set forth in this act
              or any other law to the contrary, the notice required by
              subsection (a) of this section shall constitute the only notice
              required before a court may enter a decree ordering a tax
              sale.

53 P.S. §7193.2(a) and (b) (emphasis added).
              Pursuant to the plain language of sections 39.2(a) and (b) of the
MCTLA, a party will not have standing to complain of improper notice if the City, or
in this case, Trustee, abides by the requirements in section (a).
              “Section 39.2 sets forth a specific timeline the City must follow such that
the trial court could ensure that the property was posted in the appropriate manner
and that all notices were sent to the proper parties, including notice of the decree
directing that a tax sale will occur at a specified time, place and date.” City of
Philadelphia v. Schaffer, 974 A.2d 509, 512 (Pa. Cmwlth. 2009). Strict compliance
with the service requirements is mandatory, and a trial court must make “an
independent inquiry” to confirm that notice and service were effectuated in
accordance with the MCTLA. Manu, 76 A.3d at 605-06. Traditionally, it is the
City’s burden, or in this case, Trustee’s burden, to prove strict compliance with the
requirements of the MCTLA. Id. at 604.5



       5
          Further, we note that the burden of proof will usually fall on the party that has peculiar
knowledge concerning the facts at issue. See Barrett v. Otis Elevator Co., 246 A.2d 668, 673 & n.6
(Pa. 1968) (“If the existence or nonexistence of a fact can be demonstrated by one party to a
controversy much more easily than by the other party, the burden of proof may be placed on that
party who can discharge it most easily.”). Surely, Trustee should shoulder the burden of proving
that notice was properly posted because it was the party that posted the Petition on the Property.



                                                10
            Cascone asserts that he cannot be denied standing under section 39.2(b)
of the MCTLA because Trustee did not strictly comply with section 39.2(a)(1)’s
requirement that the Petition be posted “on the most public part of the property.” 53
P.S. §7193.2(a)(1).


                                       Testimony
            At the hearing, Muhammed, who posted the Petition on the Property for
Trustee, testified that he completed an affidavit shortly after posting and that the
affidavit is “a correct and accurate reflection of what took place.” (R.R. at 79a-80a.)
On the affidavit, Muhammed checked the box for “Property Posted” and wrote “9-3-
13 11:34 am.” (R.R. at 23a.) However, Muhammed did not write where on the
Property the Petition was posted. See id.
            Moreover, Muhammed testified on direct examination as follows:

            Q. And prior to attending court today, did you have an
            opportunity to see the property or visit the property?

            A. Yes.

            Q. And what do you recall about the property?

            A. It’s basically a property that’s fenced in. It looks vacant.
            So I just drove by it to see if I can jog my memory as far as
            what took place.

            The Court: See if you could what?

            The Witness: If I could recall the property.

            BY [Trustee’s attorney]:

            Q. Okay. And do you recall, if you do, where you posted
            this property?

                                          11
            A. Not exactly, no.

            [Trustee’s attorney]: I have no further questions at this time.

(R.R. at 80a) (emphasis supplied).

            On cross-examination, the following exchange occurred:

            Q. Okay. When you said you went by the property, when
            was that?

            A. Today.

            Q. Okay. And it didn’t jog your memory at all?

            A. Did it jog my memory?

            Q. Yeah. I think that was the word you used.

            A. Yes. As far as -- I just wanted to view the property so
            that when I came today I would have familiarity with the
            property.

            Q. Right. Did it bring anything back to mind on this specific
            posting?

            A. Back to mind? No.

            Q. Okay. So you said you posted a packet of papers, is that
            right?

            A. Yes.

            Q. How did you post them?

            A. My normal posting procedure, I take both ends, and
            depending on the property, I would – depending upon the
            property, I find some place that would be sufficient to hold
            the document, because it does have weight, and I post it.

                                          12
             Q. So on this property, specifically, how did you post?

             A. I can’t say specifically.

(R.R. at 82a-83a) (emphasis supplied).

             Trustee then re-directed Muhammad:

             Q. You indicated it was a fenced-in property and you also
             indicated how you normally post properties. In a property
             such as this, how do you normally post it?

                                    *       *    *

             THE WITNESS: With a fence I normally would find --
             there is a post that’s clear. Like properties sometimes have
             debris and things on them, I find the best place possible that
             I could put the packet. I use duct tape normally and I would
             find the clearest portion of it [and would] most likely to
             [sic] put it on there, depending on what’s on the property’s
             face. On the fence I would try to get the post or the links if
             they are not covered.

(R.R. at 84a-85a.)
             On a brief re-cross, Cascone asked Muhammad one question:

             Q. You have no specific recollection what you did with
             regard to this property on September 3, 2013, correct?

             A. No, I couldn’t tell you the specifics.

(R.R. at 85a.)
             Thus, it is clear from the testimony that Muhammad could not remember
where he posted the Petition on the Property, even after driving by the Property to
refresh his memory, nor does the affidavit state where the Petition was posted on the
Property.


                                            13
               As an initial matter, we observe that when it comes to the location of
posting, each case will be fact-specific, depending on the unique nature of the
property and the particular placement of the notice on the property. See Wiles v.
Washington County Tax Claim Bureau, 972 A.2d 24, 28 (Pa. Cmwlth. 2009)
(discussing the posting requirements under the Real Estate Tax Sale Law6).
               Here, Muhammad offered no testimony to establish where the Petition
was placed on the Property, and thus his testimony could not establish that the
Petition was placed on “the most public part of the [P]roperty.”                     53 P.S.
§7193.2(a)(1). Although Muhammad testified that he “most likely” places a petition
on a debris-covered, fenced-in property on the “clearest portion” of the fence, (R.R.
at 85a), his testimony is not specific to the Property itself. Even if the trial court
accepted Muhammad’s testimony and credited it with the fullest extent of evidentiary
weight, his testimony is nonetheless insufficient to sustain the inference that the
Property was posted in accordance with section 39.2(a)(1) of the MCTLA. 53 P.S.
§7193.2(a)(1). Quite simply, proof that Muhammad usually places a petition on the
“clearest portion” of a fence does not tend to prove that the “clearest portion” of the
Property’s fence was the “most public part” of the Property for purposes of public
inspection.     Id. The two concepts (“clearest portion” and “most public part”) have
absolutely no probative correlation.
               Indeed, the “clearest portion” of the Property’s fence could very well
have been facing an obscure and unused alley where members of the public would
have had a slight chance of viewing the Petition. Further, Muhammad stated that he
typically posts a petition “depending on what’s on the property’s face.” (R.R. at 85a.)

      6
          Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. §§5860.101-5860.803.




                                                14
This is entirely a subjective assessment, dependent upon a multitude of variables, and
there is no evidence concerning what, if anything, was on face of the Property’s
fence. Without any evidence that the Property’s fence was actually covered in debris
or otherwise obstructed, it is equally and completely plausible that the entire fence
was “clear” and that any portion of it could have been posted with the Petition.
              In the midst of all this uncertainty, Muhammad’s testimony was legally
insufficient to prove that the Property was posted on its “most public part.” 53 P.S.
§7193.2(a)(1). On the basis of this record, the trial court’s finding to the contrary was
based on speculation and conjecture. In fact, the trial court would have to pile
inferences upon an unsustainable inference to reach such a finding (i.e., that the
Property’s fence was covered in debris; Muhammad actually posted the Property on
the “clearest portion” of its fence; and that the “clearest portion” of the fence, through
sheer happenstance, was also the “must public part” of the Property).                   Under
Pennsylvania law, this evidence and process of deduction is legally inadequate to
support a finding. See Commonwealth v. Yobbagy, 188 A.2d 750 (Pa. 1963) (“An
inference upon an inference or suspicion and conjecture do not take the place of
proof.”).7 Therefore, Trustee was obligated to adduce some other evidence to sustain
the trial court’s finding that the Property was posted properly.


                                          Affidavit
              The only other evidence in the record is Muhammad’s affidavit of
service. We note that in construing the Real Estate Tax Sale Law, this Court has held

       7
          See also Frey v. Unemployment Compensation Board of Review, 589 A.2d 300, 304 (Pa.
Cmwlth. 1991) (en banc); Commonwealth v. Borrin, 12 A.3d 466, 47 (Pa. Super. 2011) (en banc),
aff’d, 80 A.3d 1219 (Pa. 2013) (“Where the evidence of record equally supports two inconsistent
inferences, it proves neither.”).



                                              15
that when a public officer files an affidavit of posting, an evidentiary presumption
arises that the notice was posted properly. See, e.g., Picknick v. Washington County
Tax Claim Bureau, 936 A.2d 1209 (Pa. Cmwlth. 2007).
            In Picknick, the taxpayer argued that the Washington County Tax Claim
Bureau failed to establish with substantial evidence that the postings on the property
were capable of being viewed by the public at large. We disagreed, concluding that
the tax assessor’s affidavit of posting “gave rise to presumption of regularity”
sufficient to demonstrate that the property was properly posted. Id. at 1213. Because
the taxpayer failed to adduce any evidence, the presumption remained in effect.
            In recounting the origins of this presumption rule, this Court in Picknick
discussed Thomas v. Montgomery County Tax Claim Bureau, 553 A.2d 1044, 1046
(Pa. Cmwlth. 1989) (holding that “the evidence of the affidavit gave rise to a
presumption of posting”), which, in turn, rested upon our Supreme Court’s decision
in Hughes v. Chaplin, 132 A.2d 200 (Pa. 1957). We explained in Picknick that the
Supreme Court in Hughes held that “a prima facie presumption of the regularity of
the acts of public officers exists until the contrary appears. Such a presumption is a
procedural expedient. In tax sales it is particularly suitable.” Picknick, 936 A.2d at
1213 (citations and quotations omitted.) Tracing back even further, the Supreme
Court in Hughs cited Beacon v. Robison, 43 A.2d 640 (Pa. Super. 1945), to support
the presumption rule. In Beacon, the Superior Court articulated the reason for the
presumption as follows:

            It is, as a general rule, presumed that a public official
            properly and regularly discharges his duties, or performs
            acts required by the law, in accordance with the law and the
            authority conferred on him, and that he will not do any act
            contrary to his official duty or omit to do anything which
            such duty may require.


                                         16
Id. at 643.
              As Picknick and the history of the case law demonstrate, the evidentiary
presumption with respect to an affidavit derives from a judicially-created, public-
policy pronouncement that public officials are presumed to follow the law when
performing public acts. Here, however, there is nothing in the record to establish that
Muhammad was a public officer, such as a sheriff or a tax assessor/collector. Instead,
the record indicates that Muhammad was a private process server acting on behalf of
Trustee, a private corporation. (See R.R. at 23a, 78a.)
              Because a public official did not post the Petition on the Property, the
basis for the presumption is not present in this case and the reasoning used to support
the presumption rule does not apply. As one court observed, “Where stops the
reason, there stops the rule.” Aetna Life & Casualty Co. v. Barthelemy, 33 F.3d 189,
193 (3d Cir. 1994). Accordingly, the presumption of regularity is inapplicable. See
Braxton v. United States, 817 F.2d 238, 240-41 (3d Cir. 1987) (discussing how a
presumption of regularity attached to service by federal marshals and how this
presumption was removed when private parties began effectuating service); James v.
State, 17 S.W. 422, 423 (Tex. Ct. App. 1886) (“[T]he presumption which obtains,
that a clerk will do, and has done his official duty, cannot be extended to a private
person”).     Consequently, Muhammad’s affidavit, which was admitted without
objection, can at most be evidence of that which it says on its face.
              On the affidavit, Muhammed checked the box for “Property Posted” and
wrote “9-3-13 11:34 am.” (R.R. at 23a.) However, Muhammed did not write where
on the Property the Petition was posted. Therefore, the statements on the affidavit do
not prove (or, for that matter, do not have any tendency to prove) that the Petition was
placed “on the most public part of the [P]roperty.” 53 P.S. §7193.2(a)(1).



                                           17
             To be sure, it was imperative for Trustee to adduce evidence showing
where the petition was posted on the Property so the trial court could conduct its own
independent assessment of the Property and its surroundings to determine whether the
posting was made on the most public part. See Schaffer, 974 A.2d at 512. See also
O’Brien v. Lackawanna County Tax Claim Bureau, 889 A.2d 127, 129 (Pa. Cmwlth.
2005) (concluding that the particular placement of the notice on the property was not
conspicuous to the public and failed to comply with the posting requirements of the
Real Estate Tax Sale Law); Ban v. Tax Claim Bureau of Washington County, 698
A.2d 1386, 1388 (Pa. Cmwlth. 1997) (same); In re Upset Price Tax Sale of
September 10, 1990, 606 A.2d 1255, 1258 (Pa. Cmwlth. 1992) (same). Trustee has
failed to offer substantial evidence and sufficient proof that it complied with the
notice requirements of section 39.2(a)(1) of the MCTLA. Again, this section requires
that a Petition be posted on a property’s “must public part,” and Muhammad’s
testimony and affidavit are legally insufficient to sustain a finding that this
requirement was met.       See Kirkwood v. Unemployment Compensation Board of
Review, 525 A.2d 841, 844 (Pa. Cmwlth. 1987) (“The question of the legal
sufficiency of the evidence is one of law. Thus, if the burdened party has failed to
present sufficient evidence, he has failed to meet his burden as a matter of law [and]
cannot prevail.”). Therefore, the trial court erred in concluding that Cascone did not
have standing to file his petition to set aside the sheriff’s sale under section 39.2(b).




                                            18
                           B. Cascone’s title to the Property
             Next, Cascone contends that he has common law standing, that is, he
was “aggrieved,” because he obtained title to the Property and recorded the deed after
the Property was sold at the sheriff’s sale.
             However, standing is expressly defined and limited by sections 39.2(a)
and (b) of the MCTLA, see Petty v. Hospital Service Association of Northeastern
Pennsylvania, 23 A.3d 1004, 1008 (Pa. 2011) (“[S]tanding . . . is governed by the
statute itself”), which set forth the only notice requirements “before a court may enter
a decree ordering a tax sale.” 53 P.S. §7193.2(b). The record establishes that
Cascone did not register his interest or record the deed before the trial court ordered
the sheriff’s sale, and Cascone does not point to any provision of the MCTLA that
entitles him to notice based upon a property interest that was unregistered and
unrecorded at said time.    See id. (“No party whose interest did not appear on a title
search, title insurance policy or tax information certificate or who failed to accurately
register his interest and address . . . shall have standing to complain of improper
notice. . . . Notwithstanding . . . any other law to the contrary, the notice required by
subsection (a) of this section shall constitute the only notice required before a court
may enter a decree ordering a tax sale.”).
             Therefore, because the MCTLA governs notice and standing – and not
common law principles – Cascone’s argument lacks merit.               In any event, we
concluded above that Cascone was not deprived of standing to maintain his action to
set aside the judicial sale, and the resolution of this issue does not affect our ultimate
outcome.




                                               19
                        C. The effect of the lis pendens on standing
               Finally, Cascone argues that the trial court erred in concluding that he
lacked standing based upon the improperly docketed lis pendens. Although Cascone
raised this issue before the trial court and arguably included in it his Pa.R.A.P.
1925(b) statement, he does not develop the issue in his appellate brief in a meaningful
fashion and fails to cite any authority to support his contention; accordingly, this
argument is waived. Browne v. Commonwealth, 843 A.2d 429, 435 (Pa. Cmwlth.
2004) (“At the appellate level, a party’s failure to include analysis and relevant
authority results in waiver.”).8 Nonetheless, this Court notes that, having already
concluded that Cascone was not deprived of standing to maintain his action to set
aside the judicial sale, we need not address this issue as a disposition matter.9


                                            Conclusion
               In sum, our conclusion that the Property was not properly posted does
not concern or impugn the trial court’s credibility or weight determinations; instead,

       8
          The entirety of Cascone’s substantive argument is as follows: “[Trustee] argued that
Cascone did not have standing due to this improperly docketed lis pendens. Following the October
28 hearing, counsel for Cascone contacted the Office of Prothonotary to determine the reason why
the lis pendens appeared to be docketed incorrectly. The Prothonotary immediately corrected the
error and recorded the error. Cascone then sought reconsideration of the lower court’s [order]
which was also denied.” (Cascone’s brief at 15-16.)

        In any event, we note that our Supreme Court has held that “[i]t is the duty of a person
offering an instrument for record to see that it is both properly recorded and properly indexed,”
Commonwealth v. Roberts, 141 A.2d 393, 400 (Pa. 1958), and Giglio testified that the docket in
Cascone’s quiet title action did not have a line of information stating that a lis pendens had been
filed when Trustee was ascertaining the persons entitled to notice. (Trial court op. at 3.)

       9
         This does not mean that the trial court cannot consider the history surrounding the lis
pendens and Cascone’s title to the Property via the quiet title action as equitable factors when ruling
on the petition to set aside.



                                                 20
it is an evaluation of the legal sufficiency of the evidence. See Kirkwood, 525 A.2d at
844.    In reaching our conclusion, while the testimony of Cascone’s witnesses
indicated that they never saw any sign posted on the Property, in this case we need
look no further than the evidence presented by Trustee. Viewing the evidence that
Trustee presented at the hearing, namely Muhammad’s testimony and affidavit, in the
light most favorable to Trustee, and giving it benefit of all reasonable inferences, we
conclude that it is legally inadequate to support a finding that the Petition was posted
on the Property’s “most public part” in accordance with section 39.2(a)(1) of the
MCTLA. At most, the testimony and statements in the affidavit create a realm of
speculation and conjecture as to where the Petition was posted on the Property.
Indeed, the possibilities are endless, and the only sustainable inference is that the
Petition could have been posted anywhere on the Property’s fence, which does not
prove that it was posted on the Property’s “most public part.” For this reason, we
conclude that the trial court erred in determining that Cascone lacked standing to file
a petition to set aside a sheriff’s sale.
               Accordingly, we reverse the trial court’s order and remand for further
proceedings.



                                            ________________________________
                                            PATRICIA A. McCULLOUGH, Judge



Judge Cohn Jubelirer concurs in result only.




                                            21
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


U.S. National Bank Association,           :
as Trustee, as successor in interest to   :
Wachovia Bank, N.A. as trustee for        :
the Bond Insurer and not in its           :
individual capacity, by and through its   :
servicing agent, Linebarger Goggan        :
Blair and Sampson, LLP                    :
                                          :   No. 2237 C.D. 2014
             v.                           :
                                          :
United Hands Community Land Trust,        :
A Pa Non-Profit Corporation,              :
Delaware Valley Community                 :
Reinvestment Fund and Commonwealth        :
of Pennsylvania Bureau of Compliance/     :
Clearance Support                         :
                                          :
Appeal of: Wesley Cascone                 :


                                      ORDER


             AND NOW, this 15th day of December, 2015, the October 29, 2014
order of the Court of Common Pleas of Philadelphia County (trial court) is
reversed.   The case is remanded to the trial court for further proceedings in
accordance with this opinion.
             Jurisdiction relinquished.

                                          ________________________________
                                          PATRICIA A. McCULLOUGH, Judge
