NOT PRECEDENTIAL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. 3-13-cv-00764

District Judge: The Honorable Robert D. Mariani

 

Submitted Pursuant 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 

constitute binding precedent.
2

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, Pennsylvania. Swinka alleged that the Lackawanna County Tax Claim Bureau 

and the County of Lackawanna, Pennsylvania (collectively the County defendants), 

violated its rights under the Fifth and Fourteenth Amendments to the United States

Constitution. In addition, Swinka asserted several state law claims. For the reasons set 

forth 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 and paid the 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 instructed those in attendance 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 could redeem the property to the 

end of the day because he was 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).
3

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 occurred until the close of the business day.” See In re: Upset Sale, 

Tax Claim Bureau of Montgomery Cnty., Pa. held September 13, 1971 & September 8, 

1980, 499 A.2d 12, 13 (Pa. Commw. Ct. 1985) (citation omitted) (acknowledging that it 

had previously “held 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 agreement of sale for the Fennell property to Koldjeski. After determining that the 

real estate transaction would produce sufficient funds to pay the delinquent taxes, 

Koldjeski directed his administrative assistant, Cathy Chelland, to remove the Fennell 

property 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 Lackawanna County, asserting the following counts: (1) a breach of contract

claim; (2) an action in mandamus; (3) a § 1983 claim alleging violations of the Due 
4

Process and Equal Protection Clauses of the Fourteenth Amendment; and (4) a claim for 

a Board of Viewers under Pennsylvania’s Eminent Domain Code. The County 

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 to 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 appeals the dismissal of all of its claims, except the breach of contract 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 Br. 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 District 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 exist, the District Court misstated the status of the law,” and the “Court 

chose to omit that crucial language to avoid giving Swinka their opportunity in court”);

17 (“two (2) distinct problems with the District Court’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 questionable 

reasoning by the District Court. The District Court 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 with irrelevant citations to 

cases”); 24 (“The District Court has gone to great lengths to deprive 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”) .
5

arguments. As such, these unprofessional comments reflect poorly on Swinka’s counsel.3

When counsel wastes ink attacking the ability of able District Courts instead of 

advancing his or her client’s legal arguments, we smell more than a hint of desperation 

and confusion about how an appeal works. It is an unbecoming way to brief an appeal.

We conclude that the 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 107, 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 property 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 from the 

record developed in the District Court that Koldjeski accepted 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 

qualifications or integrity of a judge.”). 
6

announced prior to the sale and in the public notice. See A28 (quoting In re Public Sale 

of Props., 841 A.2d 619, 624 (Pa. Commw. Ct. 2004)); A40-41. 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 interest, 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 under 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 Swinka’s belief that other buyers did not experience interference with 

their purchases. A state actor needs only a rational basis for its action to defeat a classof-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 agreement of sale for the 

Fennell property as a basis for staying 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 with the Bureau’s interest in having the 

taxes paid. See Sanders v. Westmoreland Cnty. Tax Claim Bureau, 92 A.3d 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 collection of taxes”) (internal citation and 

quotation marks omitted). We will not disturb the grant of summary judgment on this 

claim.
7

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 citation and quotation marks omitted). A district court has no inferior 

court to which it can issue 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.