Background
8515 W. Chester Pike, LLC (the property owner) owned a mixed-use residential and commercial property at 8515 West Chester Pike in Upper Darby, Delaware County. The Delaware County Tax Claim Bureau initiated proceedings to sell the property at an upset tax sale due to unpaid real estate taxes. The sale occurred on September 21, 2023, and Sunday Sunshine Enterprises, LLC was the successful bidder.
The property owner filed a Petition to Set Aside the Upset Tax Sale, alleging that the Bureau failed to provide proper notice as required by the Real Estate Tax Sale Law (RETSL). Under the RETSL, a tax claim bureau must satisfy three distinct notice requirements before an upset tax sale: (1) certified mail notice at least 30 days before the sale; (2) first-class mail notice at least 10 days before the sale if the certified mail receipt is not returned; and (3) physical posting of the property at least 10 days before the sale. If mailings are returned undelivered, Section 607a(a) also requires the bureau to undertake additional reasonable efforts to locate and notify the owner.
The trial court held hearings, took the matter under advisement, and ultimately granted the petition to set aside the sale. Sunday Sunshine Enterprises, the successful tax sale bidder, appealed to the Commonwealth Court.
The Court’s Holding
The Commonwealth Court affirmed. Judge Covey’s opinion analyzed each of the three RETSL notice requirements in turn. The Court found that the Bureau had satisfied the first two requirements: the Bureau sent a certified mail tax sale notice that was returned “insufficient address, unable to forward,” and then sent the required follow-up first-class mail notice, which was also returned. The Bureau also satisfied Section 607a(a)’s additional notification requirements by searching telephone directories, corporation databases, recorder of deeds records, and by attempting phone calls and sending an email to an address found in the Bureau’s records.
However, the Court found the Bureau failed to satisfy the third requirement—physical posting of the property under Section 602(e)(3). Deputy Sheriff William Choate testified that he posted the property but then removed the posted notice and handed it to a tenant inside the business, noting “tenant accepted — language barrier” on his affidavit. The trial court found Choate’s testimony not credible, noting that he “couched his testimony with words like ‘probably’ and ‘I’ve been doing this for many years.'” The Commonwealth Court deferred to the trial court’s credibility determination and further held that even accepting Choate’s account, removing a posted notice from public view and handing it to a tenant does not satisfy the RETSL’s posting requirement because posting must be “conspicuous such that it will be seen by the public.”
Key Takeaways
- Under the RETSL, physical posting of a property scheduled for tax sale must remain visible to the public. Removing a notice from a door or exterior location and handing it to an occupant does not satisfy Section 602(e)(3), even if the occupant accepts it.
- Tax claim bureaus bear the burden of proving compliance with all three notice requirements when exceptions to a tax sale are filed. Failure on any single requirement is sufficient to set aside the sale.
- Trial court credibility determinations regarding testimony about posting procedures will be respected on appeal, consistent with the trial court’s exclusive province to weigh evidence and assess witness credibility.
Why It Matters
This decision is significant for tax sale practitioners and commercial property owners in Pennsylvania. It reinforces that RETSL notice requirements are strictly construed to protect property owners’ due process rights, consistent with the U.S. Supreme Court’s holding in Jones v. Flowers that government must provide adequate notice before taking property for tax delinquency. Even where a bureau substantially complies with mailing and additional-effort requirements, a defect in the posting procedure alone is enough to invalidate the sale.
For sheriff’s offices and bureau staff who carry out postings, the practical lesson is clear: a notice posted on a property must remain posted. The common courtesy of handing a notice to an occupant, while well-intentioned, defeats the statutory purpose of providing public notice and will expose the sale to challenge. Purchasers at upset tax sales should be aware that posting defects—which may only surface at a later hearing—represent a persistent vulnerability in tax sale titles.