The state Supreme Court has ruled that a U.S. Postal Service certificate of mailing is not the only document that can establish “proof of mailing” under the notice provision of the Real Estate Tax Sale Law.

In Horton v. Washington County Tax Claim Bureau, a six-justice court ruled 5-1 to reverse a Commonwealth Court decision that because the Washington County Tax Claim Bureau did not obtain a certificate of mailing, it failed to show proof under Section 602 of the Tax Law that it mailed notices of an upset tax sale of a property to the property owners.

Justice Correale F. Stevens did not participate in the consideration or decision of the case.

Justice Seamus P. McCaffery, writing for the majority, said the term “proof of mailing” is not a specific USPS service option available to preserve evidence of the date an item was mailed.

Instead, McCaffery said, that USPS service option is called a “certificate of mailing,” a term that is not used in Section 602.

“We cannot conclude that the General Assembly’s failure to use the USPS term ‘certificate of mailing’ in the statutory text is irrelevant or insignificant,” McCaffery said. “Recognizing that the legislature chose to use the USPS terms first-class mail, certified mail, restricted delivery and return receipt in Section 602(e), we must conclude that, if the legislature had intended to mandate the proffer of a certificate of mailing in order to establish proof of mailing, then the legislature would have so specified by use of that specific USPS term in Subsection 602(e)(2).”

Therefore, the bureau met the “proof of mailing” requirement under Section 602 when it proffered a USPS consolidated postage statement bearing a mailing date for nearly 3,000 items along with the actual envelopes that had been sent first-class to the property owners and returned as undeliverable, even though it did not obtain a certificate of mailing.

In so holding, the courtoverturned the Commonwealth Court’s 2010 decision in In re York County Tax Claim Bureau, in which it had held that a certificate of mailing was the only acceptable “proof of mailing” under Section 602 because it’s the only proof of mailing for first-class mail offered by the USPS.

McCaffery was joined by Chief Justice Ronald D. Castille and Justices Thomas G. Saylor and Debra M. Todd.

Justice J. Michael Eakin concurred in the result but said he agreed with the reasoning of Justice Max Baer’s dissent, in which Baer argued that “proof of mailing” under Section 602 requires some type of USPS document, such as a return receipt.

Eakin said he concurred with the majority’s result only because he did not believe Baer’s stricter interpretation of the Section 602 requirements should be applied retroactively in Horton.

In Horton, according to McCaffery, the bureau sold a condominium unit in Washington County, Pa., in a 2009 upset tax sale, after plaintiffs Gerald W. and Susan M. Horton, the unit’s owners, failed to pay property taxes for 2007 and 2008.

Between 2007 and 2009, McCaffery said, the bureau made numerous attempts to mail notices of the unpaid taxes and, later, the upset tax sale to the Hortons at the property’s address, all of which were returned as undeliverable.

The bureau also published notices of the tax sale in two local newspapers and a legal journal, followed by a posted notice, McCaffery said.

Defendant E.D. Lewis eventually purchased the property at the tax sale and subsequently hired a lawyer to quiet title on the property, according to McCaffery.

Eventually, Lewis’ attorney was able to locate a Florida business address for the Hortons, where he served the quiet title action via certified mail in October 2009, McCaffery said.

The following month, the Hortons filed a petition in the Washington County Court of Common Pleas seeking to open or set aside the tax sale, arguing that the bureau did not make reasonable investigative efforts to locate them for notice purposes, according to McCaffery.

The trial court, relying on York, declared the tax sale null and void and the Commonwealth Court agreed, finding that by failing to obtain a certificate of mailing, the bureau did not comply with Section 602(e)(2), which requires that when a property owner fails to reply to a first notice of a tax sale, a second notice must be sent to a property owner via “‘United States first-class mail, proof of mailing, at his last known post office address,’” according to McCaffery.

But McCaffery said the lower courts’ interpretation of the statutory language was too narrow because Section 602 does not specifically use the USPS term “certificate of mailing,” despite using several other USPS terms such as “certified mail,” “restricted delivery,” “return receipt requested” and “first-class mail.”

“From our review of Section 602(e), we must conclude that the Commonwealth Court’s determination that ‘proof of mailing’ can be satisfied only via proffer of a certificate of mailing, USPS Form 3817, does not reflect the intention of the legislature as revealed by the plain text of the statute,” McCaffery said.

Baer, however, said he didn’t believe the bureau met its requirement under Section 602 because it did not send its second notice to the Hortons with one of the USPS services intended to preserve evidence of the date the mail was sent, such as a mailing receipt or certificate of mailing.

Baer noted that, as part of a 1986 overhaul of the Real Estate Tax Law, the legislature revised the statute to require that a second notice be sent via “‘first-class mail, proof of mailing,’” rather than “‘certified mail,’” as it had previously mandated.

Baer said the “proof of mailing” specification was important.

“Contrary to the reasoning of the majority, the 1986 revision did not change the (e)(2) notice from certified mail to first-class mail without more, which would have permitted taxing bureaus to put a stamp on an envelope containing the requisite notice, and then, when challenged, to proffer any generic evidence that it mailed the envelope,” Baer said.

Eakin agreed, saying the majority’s broad interpretation of proof of mailing “opens the door to unwarranted results.”

“An envelope alone is not what the statute calls for,” Eakin said.

Counsel for Lewis, Matthew W. Fuchs of MacDonald, Illig, Jones & Britton in Erie, Pa., could not be reached for comment at press time.

Counsel for the bureau, Blane A. Black of Monongahela, Pa., called the court’s ruling “a very good decision.”

“We felt we did comply with the statute,” Black said.

Counsel for the Hortons, Joshua R. Lorenz of Meyer, Unkovic & Scott in Murrysville, Pa., also could not be reached for comment at press time.

Zack Needles can be contacted at 215-557-2493 or Follow him on Twitter @ZNeedlesTLI. •

(Copies of the 23-page opinion in Horton v. Washington County Tax Claim Bureau, PICS No. 13-3335, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.)