In yet another blow to the city of Philadelphia’s attempt to collect upon its substantial real estate tax delinquencies, the Commonwealth Court in City of Philadelphia v. Manu, 2013 Pa. Commw. LEXIS 363, issued a strongly worded opinion in stripping the city of its ability to sell a property under Pennsylvania’s Municipal Claims and Tax Liens Act, 53 P.S. § 7101 et seq. The ramifications of this opinion may forever change how the city forecloses upon real estate tax delinquencies.
In Manu, the city filed a petition seeking authorization to sell a rental property situated in Philadelphia. In the petition, the city alleged that a lien was entered on the property for unpaid water and sewer rents in the amount of $0 (yes, $0) in 1987 and that additional delinquencies may have subsequently accrued. As part of the petition, the city attached an amended claim of $657, plus interest and penalties, for unpaid real estate taxes due on account of the property for 1986.
The trial court issued a rule upon the property owner to show cause why an order permitting a sale of her property should not be entered. In the rule, the trial court directed that service of the petition and the rule be made in the manner of service of writs of scire facias under the act.
The following month, the city filed the sheriff of Philadelphia County’s return of service containing a notation that the property was posted. The property owner, Agnes Manu, eventually filed a motion with the trial court to extend the time in which to file an answer to the rule to show cause, alleging that she just became aware of the filing of the petition. The trial court granted the motion and directed her to file an affidavit of defense. Instead of doing so, Manu filed a motion to stay the proceeding, alleging that she had not received tax assessment notices since 1998 and was filing tax assessment appeals nunc pro tunc with the city’s Board of Revision of Taxes.
The trial court then issued two separate orders. The first trial court order stated that, after a hearing, the trial court denied the stay. The second trial court order authorized the city to sell the property at a tax sale. The trial court stated that it was satisfied that service of the rule to show cause was properly made and that no answer had been filed to the petition.
Manu filed a motion for clarification with the trial court, indicating that she was unclear whether the city was seeking to collect delinquent water and sewer rents or delinquent real estate taxes and that the trial court, in authorizing the tax sale of the property, did not specify the amount she owed to the city.
Manu also filed a motion to strike or vacate the trial court order authorizing the tax sale of the property. In that motion, the property owner argued that the trial court was deprived of jurisdiction to grant the petition due to defective service of the petition and the rule to show cause, and that the trial court order authorizing the tax sale of the property, therefore, was void ab initio.
After the trial court denied the motion to strike or vacate as well as the motion for clarification, Manu appealed the denial of the motion to strike or vacate to the Commonwealth Court.
The Commonwealth Court ultimately concluded that the city should not have been granted the permission to sell the property at a tax sale.
In reaching its conclusion, the Commonwealth Court initially emphasized that the city had the burden of proving strict compliance with the requirements of the act. In reviewing each of these mandatory steps, the Commonwealth Court believed that it “[wa]s apparent that there was not even substantial, let alone strict, compliance.”
The Commonwealth Court pointed out that “the petition neither listed ‘all tax and municipal claims’ nor gave any sense of their magnitude.” Rather, according to the Commonwealth Court, “the only claim listed in the petition is a lien for unpaid water and sewer rents in the amount of $0″ and “an amended claim for unpaid taxes in the amount of $657.54.”
The Commonwealth Court was especially concerned that the city, despite the allegations contained in the petition, asserted that its actual lien was for $14,702 and, presumably, expected to collect at least that amount from the tax sale if the sale proceeds were sufficient.
This portion of the Commonwealth Court’s ruling to me is rather damning. I have handled many petitions over the years to set aside a tax sale and it is common practice for the city to only set forth the initial municipal delinquency in the petition. It seems to me that the city must now specify with greater particularity the municipal obligations it is attempting to collect or risk the invalidation of future tax sales.
Next, the Commonwealth Court chastised the city for failing to properly serve Manu with the petition seeking the authorization to sell the property at a tax sale and the subsequently issued rule.
In the rule, the trial court only required the city to serve Manu in the manner for service of writs of scire facias to obtain judgments upon tax and municipal claims under the act.
“Section 18 of the act, 53 P.S. §7186, providing for service of writs of scire facias, requires personal service of all persons named in the writ, and any other persons found in possession of the property. If no one is found in possession of the property, it is to be posted,” the opinion said.
In strict conformance of the trial court order, the city directed the sheriff of Philadelphia County to post the property.
What confused the Commonwealth Court is why the trial court did not comply with the plain language of the act, which provides that notice of a rule to show cause is to be made by posting the property as well as by serving the property owner via certified and first-class mail.
Before granting a petition for sale of a property under the act, the Commonwealth Court cautioned that the trial court must make an “independent inquiry” as to whether the city strictly complied with the act’s service requirements.
According to the Commonwealth Court, “proper service of a petition for tax sale and a rule to show cause is a prerequisite to a court acquiring personal jurisdiction over a defendant” and the “failure to strictly comply with the service requirement deprives the court of jurisdiction to authorize a sheriff’s sale.”
The Commonwealth Court noted that “the record is devoid of evidence of publication and the city does not even assert that there was any.” At the hearing where the petition and rule was presented by the city, the Commonwealth Court stated that “no mention was made of service of the petition and rule” and “no evidence was presented to establish the truth of the facts in the petition.”
In the opinion, the trial court was reprimanded by the Commonwealth Court for issuing a decree allowing for the tax sale to occur without making any inquiry about service of the petition and rule.
In the appeal, the city argued that it filed an affidavit of service after the decree was issued averring that it indeed made service of the petition and rule by certified and first-class mail. The Commonwealth Court was not swayed by this filing since the affidavit of service did not exist at the time the trial court issued the decree allowing for the tax sale of the property.
In the end, the Commonwealth Court cautioned that, in order to comply with the act, the trial court must “hold a hearing to determine that service of the rule to show cause was made … and that the facts stated in the petition are true.”
The Commonwealth Court’s ruling in Manu is clearly devastating for the city. In many ways, unless this ruling is overturned on appeal to our Supreme Court, the city and the trial court in Philadelphia will now be forced to alter the way delinquent real estate taxes are foreclosed upon in Philadelphia.
Alan Nochumson is the sole shareholder of Nochumson P.C., where his law firm’s primary practice areas consist of real estate, litigation, employment and labor, and land use and zoning. He is also president of Bear Abstract Services, where his title insurance company offers comprehensive title insurance, title examination and closing services. He can be reached at 215-399-1346 or by email at email@example.com.