NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 16

- 3279

_____________ SWINKA REALTY INVESTMENTS LLC, Appellant

v. LACKAWANNA COUNTY TAX CLAIM BUREAU ;

COUNTY OF LACKAWANNA

_____________ On Appeal from the United States District Court for the Middle District of Pennsylvania District Court No. 3

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- cv - 00764 District Judge: The Honorable Robert D. Mariani
Submitted Pursua nt to Third Circuit L.A.R. 34.1(a)

April 24, 2017 Before: SMITH, Chief Judge , McKEE, and RENDELL, Circuit Judges

( Opinion Filed: May 2, 2017 )

_____________________ OPINION *

_____________________

* This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not cons titute binding precedent.

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SMITH, Chief Judge

. Swinka Realty Investments, LLC, filed a civil rights complaint based on its inability to acquire a parcel of real estate it bid upon at an upset tax sale in Lackawanna County, Pennsylva nia. Swinka alleged that the Lackawanna County Tax Claim Bureau

an d the County of Lackawanna, Pennsylvania ( c ollectively the County defendants) , violated its rights under the Fifth and Fourteenth Amendments to the U nited States Constitution. In addition, Swinka asserted several state law claims. For the reasons set
for th below, we will affirm. 1 The upset tax sale at issue concerned real property located at 905 Woodmere Avenue, Dickson City, Lackawanna County, Pennsylvania , owned by John Fennell

. Mark Gawron, Swinka’s operator , bid on the Fennell property a nd paid t he purchase price of $ 541.16 on September 20, 2010, which was the day of the upset sale

. The property was valued at $177,000. According to Ronald Koldjeski, the Deputy Director of the Lackawanna County Tax Claim Bureau, he presided over the sale and in structed th os e in a ttenda nce that past due taxes could be paid up to 4:00 PM that day. Koldjeski explained during his deposition that he extended the time by which an owner c ould redeem the property to the end of the day because he wa s in the business of getting taxes paid. The public notices of

1 The District Court exercised jurisdiction under 28 U.S.C. § § 1331 , 1367, 1441 . We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over a district court’s order granting summary judgment. Roth v. Norfalco LLC , 651 F.3d 367, 373 (3d Cir. 2011).

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the upset tax sale also specified that “ [t] he sale of these properties may at the option of
the Bureau be stayed if the owner thereof or any lien creditor of the owner on or before the date of sale , enters into an agreement with the Bureau to pay the taxes, claims and costs in installments in the manner approved by said act and the Agreement to be entered into.” Lackawanna Jurist at 1 (emphasis added). Thus , the terms of the upset sale meant that “no final sale o ccurred until the close of the business day.” See I n re: Upset Sale, Tax Claim Bureau of Montgomery C n ty

. , P a. held September 13, 1971 & September 8,
1980 , 499 A.2d 12, 13 (Pa. Commw. Ct. 1985 ) (citation omitted) (acknowledging that it had previously “hel d that where proper notice was given to all interested parties of the taxpayer’s right of redemption by partial (25%) payment until the close of business on the day of the sale, no final sale occurred until the close of the business day ”). On the day of the upset sale, Fennell’s attorney, Armand E. Olivetti , contacted Koldjeski about staying the upset sale of Fennell’s property because it was under contract to be sold in early October. Around noon, pursuant to their conversation, Olivetti faxed
the agree ment of sale for the Fennell property to Koldjeski . After determining th at th e real estate transaction would produce sufficient funds to pay the delinquent taxes, Koldjeski directed his administrative assistant, Cathy Chelland, to remove the Fennell
prope rty from the upset sale and to advise Swinka that the property was going to be
redeemed. Swinka did not take any action to compel the conveyance of a tax deed. Instead, almost two years later, Swinka filed this action in the Court of Common
Pleas of La ckawanna County , asserting the following counts : (1) a breach of contract
claim ; (2) an action in m andamus ; (3) a § 1983 claim alleging violations of the Due

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P rocess and Equal P rotection Clause s of the Fourteenth Amendment ; and (4) a claim for

a B oard of V iewers under Pennsylvania ’ s Eminent Domain Code. The C ounty defendants removed the action. An amended complaint added a Fifth Amendment claim alleging a deprivation of property without just compensation. The Eminent Domain claim was dismissed pursuant t o a motion to dismiss. After discovery concluded, the County defendants moved for summary judgment. The District Court granted summary judgment in favor of the County defendants

. Swinka appeal s the dismissal of all of its claims, except the breach of co ntract action

. In doing so, Swinka ’s brief repeatedly casts aspersions on the District Court’s analytical ability. 2 The aspersions lack substance and utterly fail to advance Swinka’s legal

2 See Appellant’s B r. at 13 (“ The District Court . . . smugly contradicted itself”) ; 14 (“If, as the District Court so proudly recited”) ; 15 (“a genuine issue of fact was clearly and intentionally overlooked by the D istrict Court” and the District Court’s analysis is “ quite frankly, outright false”); 16 (“evidences the District Court’s clear lack of understanding of Pennsylvania Tax Sale Law , ” “seemingly in an effort to bolster a legal position that really does not ex ist, the District Court misstated the status of the law ,” and the “Court chose to omit that crucia l language to avoid giving Swin ka their opportunity in court”) ; 17 (“two (2) distinct problems with the Distr i ct Cou rt’s unsubstantiated position”); 19 (“the District Court grossly erred in its ruling”) ; 19 n.1 (“the District Court has acted far outside its bounds”), 20 ( “ The District Court . . . was once again, wrong.”); 21 (“This issue presents the Third Circuit with one of the more shocking decisions and que stionable reasoning by the District Court. The District C ourt astonishingly claims ”); 22 ( “[i]t is not only disingenuous for the District Court” and “the District Court misstates, and clearly misunderstands”); 23 (asserting the Court “padded its opinion w ith irrelevant citations to cases”); 24 (“The District Court has gone to great lengths to de prive Swinka of its rights” ); 25 ( “most egregiously, the District Court seeks to deprive Swinka of its rights” and “clearly feels that Swinka’s rights are secondary to everyone else merely because of the values involved”)

.

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arguments. As such, these unprofessional comments reflect poorly on Swinka’s counsel. 3 When counsel wastes ink attacking the ability of able District Courts in s tea d of advancing his or her clien t ’ s legal arguments, we smell more than a hint of desperation and confusion about how an appeal works. It is a n un becoming w ay to brief an appeal.
We conclude that t he District Court did not err in dismissing Swinka’s procedural due process claim. The elements of this claim require establishing that: “(1) [the person] was deprived of an individual interest that is encompassed within the Fourteenth Amendment’s protection of ‘life, liberty, or property,’ and (2) the procedures available . . . did not provide ‘due process of law.’” Hill v. Borough of Kutztown , 455 F.3d 225, 234 (3d Cir. 2006) (citing Alvin v. Suzuki , 227 F.3d 1 07, 116 (3d Cir. 2000)). The District Court concluded that Swinka did not have a property interest in the Fennell property because it “had been redeemed on the same day as the tax sale.” A41. Swinka contends that this was error because the Fennell pro perty was not redeemed as he was asked to withdraw his bid the following day. There is no need to quibble about the term “redemption” for purposes of the upset tax sale because it is undisputed fr o m the record developed in the District Court that Koldjesk i accept ed the agreement of sale from
Olivetti before the close of business on the day of the upset sale . Koldjeski’s acceptance
of this documentation effected a stay of the upset sale as permitted by the terms

3 We note that Swinka ’s counsel is a member of the Pennsylvania bar and that he is ethically bound to avoid reckless aspersions on the integrity or qualifications of a judge. See Pa. Rule Prof. Conduct 8.2(a) (“A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualificat i ons or integrity of a judge.”).

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announced prior to the sale and in the publi c notice

. See A28 (quoting In re Public Sale of Props

. , 841 A.2d 619, 624 (Pa. Commw. Ct. 2004)) ; A40

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. Because the upset sale for the Fennell property was never final , Swinka never acquired an interest in the realty

. In the absence of a property inte rest, Swinka’s due process claim fails as a matter of law. Given the lack of a property interest, there also is no basis for disturbing the District Court’s grant of summary judgment on either the Fifth Amendment unlawful takings claim or the claim unde r the Pennsylvania Eminent Domain Code seeking a
Board of Viewers for an inverse condemnation.
Swinka also disputes the dismissal of its “class

- of

- one” equal protection claim , which rests on Swin k a’s belief that other buyers did not experience interfere nce with their purchases

. A state actor n eeds only a rational basis for its action to defeat a class

of

- one claim. Vill

. of Willowbrook v. Olech , 528 U.S. 562, 564 (2000). Here, there was a
very “ rational basis” for the Bureau’s decision to accept the a greement of sale for the Fennell property as a basis for stay ing the upset sale

. The agreement of sale confirmed
for the Bureau that there was a verifiable source to timely pay in full the delinquent taxes on the Fennell property , which was consistent wit h the Bureau’s interest in having the taxes paid. See Sanders v . Westmoreland C nty

. Tax Claim Bureau , 92 A.3 d 97, 100 (Pa. Commw. Ct. 2014) (acknowledging that “the purpose of tax sales is not to strip the taxpayer of his property, but to insure the colle ction of taxes” ) (internal citation and quotation marks omitted )

. We will not disturb the grant of summary judgment on this
claim.

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Finally, Swinka contends that the District Court erred by denying mandamus relief compelling the conveyance of a tax deed

. This argument is frivolous for several reasons

. First, a writ of mandamus is traditionally used to compel an inferior court “to exercise its authority when it is its duty to do so

. ” Allied Chem. Corp. v. Daiflon, Inc. , 449 U.S. 33, 35 (1980) ( internal c itation and quotation marks omitted). A district court has no inferior
court to which it can issu e the writ. Second, there were other means by which Swinka could have sought the deed it desired

. Id. (observing that a writ of mandamus “ require [ s ]
that a party seeking issuance have no other adequate means to attain the relief he desires”). Third, the right to the relief Swinka sought was neither clear nor indisputable

. Id. As a result, both the count seeking mandamus relief in the amended complaint and this appeal challenging the District Court’s rejection of the claim are frivolous. For the above reasons, we will affirm the judgment of the District Court.