IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Amy Nguyen and Kenny Pham :

:

v. : No. 393 C.D. 2020

: Argued: November 12, 2020

Delaware County Tax Claim :

Bureau and Chadd Neumann :

:

Appeal of: Chadd Neumann :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge (P.)

HONORABLE ELLEN CEISLER, Judge

OPINION BY JUDGE BROBSON FILED: December 29, 2020

Appellant Chadd Neumann, the upset tax sale purchaser (Tax Sale Purchaser), 

appeals from an order of the Court of Common Pleas of Delaware County 

(Common Pleas), dated January 15, 2020, which granted Appellees Amy Nguyen’s 

and Kenny Pham’s (Objectors) petition to set aside the upset tax sale (Petition). 

Common Pleas determined that Objectors had standing as equitable owners of the 

property, and the Delaware County Tax Claim Bureau’s (Bureau) deficiencies in 

providing notice of the tax sale to the prior owner of the property pursuant to the 

Real Estate Tax Sale Law (RETSL)1constituted grounds to set aside the upset tax 

sale. For the reasons that follow, we vacate the order and remand the matter to 

Common Pleas for further proceedings.

1 Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. §§ 5860.101-.803.
2

I. BACKGROUND

Pursuant to Section 607 of the RETSL, 72 P.S. § 5860.607, Objectors 

filed the Petition, seeking to set aside the upset tax sale of property located at 

808 Garrett Road, Upper Darby, Pennsylvania (Property). (Original Record (O.R.), 

Item No. 1, ¶ 1.) Objectors averred that the “Property was reportedly exposed to 

a[n] upset tax sale conducted by the [Bureau] on or about September 13, 2018, 

reportedly on account of a tax claim against the prior owner of the . . . Property, 

Nhi Thi Ngoc Phan [(Prior Owner)], for the years 2016 and 2017,” and that 

“the Bureau failed to provide . . . Prior Owner with proper notice of the sale and 

failed to make reasonable efforts to uncover . . . Prior Owner’s location.” 

(Id., ¶¶ 2, 3.)

Objectors averred that they have standing to raise exceptions and 

objections, because: (1) they purchased the Property as their residence on 

September 13, 2018—the same day as the reported upset tax sale—for $140,000.00

(id., ¶¶ 5, 8); (2) at the closing for the sale of the Property, “a check in the amount 

of $13,518.47 was issued to the Bureau for the delinquent taxes owed” (id., ¶ 6); 

(3) after the closing, they “believed they acquired good and record title to the . . . 

Property, free and clear of any tax claims or liens” (id., ¶ 7); (4) they currently live 

at the Property (id., ¶ 9); (5) they “are the owners of the . . . Property through their 

purchase from . . . Prior Owner” (id., ¶ 10); (6) “[d]ays after the [c]losing, the check 

disbursed to the Bureau was returned to the settlement agent that handled the sale of 

the . . . Property,” accompanied by a letter from the Bureau, indicating that the 

property was sold in an upset tax sale on September 13, 2018 (id., ¶ 11, Ex. B);

and (7) it was at or about that time that Objectors and Prior Owner “learned for the 
3

first time that the . . . Property had been exposed to the underlying upset tax sale on 

the same date as the [c]losing,” as Prior Owner had not received notice of the upset 

tax sale (id., ¶¶ 12, 13).

Objectors averred that “the Bureau failed to provide . . . Prior Owner with 

advance notice of a tax claim, lien, or the upset sale of the . . . Property conducted 

on September 13, 2018.” (Id., ¶ 14.) Objectors attached to the Petition what they 

contend is the complete file they received from the Bureau concerning the upset tax 

sale. (Id., ¶ 15.) The file contains copies of a certified mail card directed to 

Prior Owner at the address of the Property, which Objectors describe as appearing 

“to represent the Bureau’s attempt to deliver notice of the [tax] [u]pset [s]ale to . . . 

Prior Owner.” (Id., ¶¶ 15-17.) The return receipt “indicates that a mailing was 

directed, certified mail, restricted delivery” and “contains an illegible signature of 

an individual[] and does not list the printed name of the party” who purportedly 

signed the return receipt. (Id., ¶¶ 18-19.) Objectors averred that, according to the 

United States Postal Service website, the notice was delivered to the Property on 

July 21, 2018. (Id., ¶ 20.) Prior Owner did not sign the return receipt, as she did not 

live at the Property on that date, has never lived at the Property, and had kept the 

Property as an investment—i.e., rental property. (Id., ¶¶ 21-22.) It is unclear who 

signed the return receipt. (Id., ¶ 23.) Moreover, Prior Owner’s tenant at the time 

did not have authority to accept or sign for mail on behalf of Prior Owner, and she 

did not inform Prior Owner of any notice regarding the upset tax sale. 

(Id., ¶¶ 24-25.) The Bureau’s file also includes handwritten notes which appear to 

indicate that the Bureau attempted to call Prior Owner on August 29, 2018, but that 

the call could not be completed as dialed. It is unclear where the Bureau located the 

listed phone number, and a search revealed the number could belong to three 
4

individuals in the greater Philadelphia area, none of which are Prior Owner. 

(Id., ¶¶ 28-30.) The Bureau had previously attempted to notify Prior Owner as to 

the delinquent 2016 taxes by certified mail to the Property, but the certified mail was 

returned as unclaimed. (Id., ¶ 34.) Based upon the above, Objectors averred that the 

Bureau was aware of circumstances raising a significant doubt as to Prior Owner’s 

receipt of the notice of sale. (Id., ¶ 35.) Nevertheless, the Bureau did not send notice 

to the Prior Owner at her correct address or reasonably attempt to investigate her 

true address. (Id., ¶ 36.) As a result, Prior Owner never received the notice of sale 

nor did she see any posted notice or advertisement of the sale in any publication. 

(Id., ¶¶ 38-40.) Prior Owner had no knowledge or actual notice of the upset tax sale 

until the check disbursed to the Bureau at the closing was returned days later. 

(Id., ¶ 41.) Had Prior Owner known, she would have taken steps to make sure the 

alleged tax claim was satisfied. (Id., ¶ 42.) Thus, Objectors asserted that the upset 

tax sale should be set aside because the Bureau violated RETSL when it failed to 

provide notice of the sale and failed to exercise reasonable efforts to ascertain the 

whereabouts of the record owner.

Tax Sale Purchaser answered the Petition on November 19, 2018, arguing that 

Objectors did not have standing to challenge the upset tax sale on the basis of lack 

of notice. (O.R., Item No. 2.) In support of that position, Tax Sale Purchaser averred 

that Objectors did not become record owners of the Property until their deed was 

recorded on September 24, 2018—eleven days after the upset tax sale. (Id., ¶ 1.) 

Furthermore, Objectors were neither owners nor lien creditors on 

September 13, 2018, when the upset tax sale occurred. (Id., ¶ 71.) The Bureau did 

not answer or respond to the Petition.
5

On December 4, 2018, Common Pleas scheduled a hearing on the matter for 

January 23, 2019. (O.R., Item No. 4.) At the hearing, Tax Sale Purchaser’s attorney 

informed Common Pleas regarding the “preliminary issue” of standing and 

requested that the matter be continued to the April 4, 2019 list to allow the parties to 

submit memoranda of law on the issue of standing before the parties get to the 

Bureau’s burden with regards to the underlying sale. (O.R., Item No. 19 at 4.) 

Thereafter, Objectors and Tax Sale Purchaser filed memoranda of law, addressing 

only the issue of standing. (O.R., Item Nos. 9, 10.) Objectors also filed a praecipe 

to attach affidavits of Objectors to the Petition, along with copies of a deed for the 

Property, dated September 11, 2018—two days before the closing and upset tax 

sale—as well as a reply memorandum. (O.R., Item No. 11.) At the call of the 

April 4, 2019 list, the Tax Sale Purchaser requested that Common Pleas schedule 

oral argument on the issue of standing. (O.R., Item No. 20 at 3-4.) Common Pleas 

heard argument on May 30, 2019. (O.R., Item No. 18.) Toward the conclusion of 

the hearing, Tax Sale Purchaser’s counsel stated: “I understand that if the Court 

[concludes] there’s standing, we’re going to have a hearing on this. We’re going to 

have a real trial . . . .”2 (Id. at 16-17.) The Bureau did not file a brief or participate 

in the oral argument.

Based on the record, it appears that nothing else occurred until Common Pleas

issued an order, dated January 15, 2020, granting the Petition. (O.R., Item No. 21 

at 1.) Common Pleas also issued the following findings of fact:

1. [Objectors] purchased the Property . . . from its [P]rior Owner on 

September 13, 2018[,] for $140,000.00.

2 We note, in the event that Common Pleas disagreed with Tax Sale Purchaser’s counsel’s 

understanding of the procedural posture of the matter, it never indicated so.
6

2. At the closing for the sale of the Property, a check for $13,518.47 

was issued to [the Bureau] for delinquent taxes owed on the Property 

for the years 2016 and 2017.

3. Unbeknownst to [Objectors] and the [P]rior Owner, the Property had 

been exposed to the underlying [upset] tax . . . sale on September 13, 

2018[,] and was sold to [Tax Sale Purchaser].

4. The Record is devoid of any evidence as to the time of the [u]pset 

[t]ax [s]ale on September 13, 2018.

5. Days after the [c]losing, the $13,518.47 check for delinquent taxes 

on the Property from the [Bureau] was returned to the [s]ettlement 

[a]gent.

6. Subsequently, [Objectors] learned that the Property had been 

exposed for sale at the [u]pset [t]ax [s]ale on the same date as the 

[c]losing, September 13, 2018.

7. The [P]rior Owner alleged that she did not receive notice of the 

[u]pset [t]ax [s]ale.

8. [Objectors] purchased the . . . Property as their residence.

9. Objectors currently live [at] the . . . Property.

10. [Common Pleas] held Oral Argument wherein it determined that 

the central issue in this matter was . . . [Objectors’] standing in this 

matter.

. . . .

21. [Objectors] and the [P]rior Owner entered into and signed an 

Agreement of Sale for the Property on June 9, 2018[,] and 

June 16, 2018, respectively.

22. [Objectors] received the executed deed for the Property on 

September 11, 2018, two days before the September 13, 2018 [u]pset 

[t]ax [s]ale.

(Id. at 2-5 (citations omitted).) Common Pleas concluded that, “under the doctrine 

of equitable conversion, Objectors acquired rights as ‘equitable owners’ pursuant to 

their [a]greement of [s]ale to purchase the Property from the [P]rior [O]wner.” 

(Id., Conclusion of Law (COL) No. 20.) Common Pleas also found that, “[u]pon 

review of the [r]ecord, [Common Pleas] finds that the [Bureau] failed to meet the 

statutory notice requirements under [RETSL].” (Id., COL No. 24.) Common Pleas 
7

concluded that, “[i]n light of [Objectors’] standing as equitable owners and the 

deficiencies in providing notice pursuant to [RETSL], the [u]pset [t]ax [s]ale in this 

matter should be set aside.” (Id., COL No. 25.) This appeal followed.3

II. ISSUES

On appeal, Tax Sale Purchaser argues that Objectors lack standing to contest 

the upset tax sale. Tax Sale Purchaser also argues that Common Pleas denied him 

due process of law when it granted the Petition without an evidentiary hearing. 

As to this issue, Tax Sale Purchaser contends that Common Pleas denied him the 

opportunity to produce evidence pertaining to notice.

III. DISCUSSION

We begin with the threshold question of who has standing to petition to set 

aside an upset tax sale. This Court has explained:

“The traditional concept of standing focuses on the idea that a person 

who is not adversely impacted by the matter he seeks to challenge does 

not have standing to proceed with the court system’s dispute resolution 

process.” Pittsburgh Palisades Park, LLC v. [Cmwlth.], . . . 888 A.2d 

655, 659 ([Pa.] 2005) (citing William Penn Parking Garage v. City of 

Pittsburgh, . . . 346 A.2d 269, 280-81 ([Pa.] 1975) (plurality)). In other 

words, a person must be aggrieved or have a legally sufficient interest 

in a matter to have standing. As stated by our Supreme Court:

[A]n individual can demonstrate that he is aggrieved if he 

can establish that he has a substantial, direct, and 

immediate interest in the outcome of the litigation in order 

to be deemed to have standing. An interest is ‘substantial’ 

if it is an interest in the resolution of the challenge which 

‘surpasses the common interest of all citizens in procuring 

obedience to the law.’ Likewise, a ‘direct’ interest 

3

“Our scope of review in tax sale cases is limited to determining whether the trial court 

abused its discretion, rendered a decision with a lack of supporting evidence, or clearly erred as a 

matter of law.” Shipley v. Tax Claim Bureau of Delaware Cnty., 74 A.3d 1101, 1104 n.3 

(Pa. Cmwlth. 2013) (quoting Plank v. Monroe Cnty. Tax Claim Bureau, 735 A.2d 178, 181 n.6 

(Pa. Cmwlth.), appeal denied, 747 A.2d 373 (Pa. 1999)).
8

mandates a showing that the matter complained of ‘caused 

harm to the party’s interest,’ i.e., a causal connection 

between the harm and the violation of law. Finally, an 

interest is ‘immediate’ if the causal connection is not 

remote or speculative.

Id. . . . , 888 A.2d at 660 (citations omitted).

CR 2018 LLC v. Columbia Cnty. Tax Claim Bureau, 229 A.3d 398, 402 (Pa. 

Cmwlth. 2020) (quoting Shipley, 74 A.3d at 1105). “‘Whether [an individual] ha[s] 

standing, as an equitable owner, to file [a petition to set aside a tax sale] pursuant to 

Section 607 of the [RETSL, 72 P.S. § 5860.607,] is a question separate from whether 

[the individual is] entitled to notice.’” Id. (quoting Shipley, 74 A.3d at 1105).

“Section 607(b) of the RETSL provides, in relevant part, that ‘objections or 

exceptions [to a tax sale] may be filed by any owner or lien creditor.’” 

Id. (quoting 72 P.S. §5860.607(b)). Section 102 of the RETSL, 72 P.S. § 5860.102,

defines “owner” as

the person in whose name the property is last registered, if registered 

according to law, or, if not registered according to law, the person 

whose name last appears as an owner of record on any deed or 

instrument of conveyance recorded in the county office designated for 

recording and in all other cases means any person in open, peaceable 

and notorious possession of the property, as apparent owner or owners 

thereof, or the reputed owner or owners thereof, in the neighborhood of 

such property; as to property having been turned over to the bureau 

under Article VII [(relating to property purchased by taxing districts 

prior to the RETSL)] by any county, ‘owner’ shall mean the county.

Section 607(d) of the RETSL limits the challenges to upset tax sales by owners of 

the real estate at the time of the upset tax sale and limits objections or exceptions to 

the “regularity or legality of the procedures of the bureau in respect to such sale.”

“This Court has recognized that ‘[t]he legislature designated [in the RETSL] 

that only owners or lien creditors may file objections or exceptions to the return of 

the [tax bureau] and confirmation nisi by the trial court of the tax sale.’” 
9

CR 2018 LLC, 229 A.3d at 402-03 (quoting Appeal of Yardley, 646 A.2d 751, 755 

(Pa. Cmwlth. 1994) (emphasis omitted)). “Therefore, one who is neither an ‘owner’ 

nor a lienholder [on the date of the tax sale] cannot complain of noncompliance with 

the notice provisions.” In re Petition of Crouthamel, 412 A.2d 645, 647 

(Pa. Cmwlth. 1980).

Simply stated, persons who are not owners or lien creditors of the property at 

the time of the tax sale do not have standing to file objections or other exceptions. 

First Horizon Home Loan Corp. v. Adams Cnty. Tax Claim Bureau, 847 A.2d 774, 

777 (Pa. Cmwlth. 2004) (First Horizon). Objectors, based on the record before us, 

are not lien holders. Consequently, their only avenue to have standing in this case 

is to show they were “owners” of the property at the time of the upset tax sale 

pursuant to Section 102 of the RETSL. As noted above, Common Pleas concluded 

that Objectors were equitable owners of the Property at the time of the upset tax sale.

A. Equitable Owners

Tax Sale Purchaser contends that Common Pleas erred when it concluded that 

Objectors have standing to challenge the tax sale based on their equitable interest in 

the Property at the time of the tax sale. We begin by briefly reviewing the law that 

provides for equitable ownership.

The Pennsylvania Supreme Court has stated that “[i]t is well-established 

law . . . that when the [a]greement of [s]ale is signed, the purchaser becomes the 

equitable or beneficial owner through the doctrine of equitable conversion.” 

DiDonato v. Reliance Standard Life Ins. Co., 249 A.2d 327, 329 (Pa. 1969) (citing 

Payne v. Clark, 187 A.2d 769 (Pa. 1963)). The Supreme Court has explained:

The doctrine of equitable conversion arose out of the power of 

the chancellor to compel the performance which was intended by the 

parties. This power was grounded in the principle that equity treats as 

done those things that should be done, quod fieri debet facile 
10

praesumitur. It is precisely because of the equitable remedy of specific 

performance that fundamental real property rights are created in a 

purchaser of realty prior to delivery of the deed. Kerr v. Day, 14 Pa. 

112 (1850). The principles applicable to the sales of real property 

between private parties are equally applicable to sales for delinquent 

taxes. . . . Thus, the doctrine of equitable conversion is applicable to a 

sale for delinquent taxes and its operation conveys equitable title to the 

purchaser.

Pivirotto v. City of Pittsburgh, 528 A.2d 125, 127-28 (Pa. 1987).

We have previously addressed whether non-record owners of a property 

subject to an upset tax sale have standing to file objections to the upset tax sale under 

Section 607 of the RETSL. Husak v. Fayette Cnty. Tax Claim Bureau, 61 A.3d 302 

(Pa. Cmwlth. 2013). In Husak, the owners acquired the subject property via a 

quitclaim deed in 2006, but they did not record the deed until after the tax sale. 

Id. at 303. The tax sale purchaser argued that the owners lacked standing to file 

objections because a lender, Fannie Mae, was the record owner of the property at the 

time of the September 2010 tax sale and remained so until the owners finally 

recorded their quitclaim deed in March 2011. Id. at 304. The tax sale purchaser 

argued that the owners were not record “owners” as defined by Section 102 of the 

RETSL so they could not file objections pursuant to Section 607 of the RETSL. Id. 

(citing 72 P.S. §§ 5860.102, 5860.607). The Court of Common Pleas of Fayette 

County determined that, despite not recording the deed until after the sale, the 

owners were the equitable, if not legal, owners of the property at the time of the tax 

sale; therefore, they were persons aggrieved by the tax sale. Id. at 305. We agreed 

with common pleas that the owners had standing even though they did not hold 

record title and concluded that, “[b]y purchasing the subject property back from 

Fannie Mae in April 2006 for $150,000 and receiving a quitclaim deed for it, 
11

[the o]wners acquired, at the very minimum, equitable title, a legally recognized 

interest in the subject property.” Id. at 310 (citing Pivirotto, 528 A.2d at 128).

A few months later, in Shipley, we determined that a wife had an equitable 

interest in a property purchased with joint funds while she and her husband were 

married, even though she was not mentioned on the recorded deed. Shipley, 74 A.3d 

at 1106. Consequently, she had standing to challenge the judicial tax sale of the 

property. Id. The Court of Common Pleas of Delaware County denied her petition 

to set aside the judicial tax sale and found that the county tax claim bureau satisfied 

the notice requirements of Section 102 of the RETSL, 72 P.S. § 5860.102. Id. 

We reversed, holding that, although the tax claim bureau was not required to provide 

notice to the wife of the impending judicial sale because she was not the legal owner, 

the wife had standing to challenge the judicial tax sale of the property. Id.

The following year, in Moore v. Keller, 98 A.3d 1 (Pa. Cmwlth. 2014), 

we reviewed a case involving a petition to set aside a tax sale filed by the executrix 

of the estate of a deceased record owner. The Court of Common Pleas of Luzerne 

County denied the petition, concluding that the executrix was neither an “owner” 

nor “lien creditor” of the property as defined by Section 102 of the RETSL and, 

consequently, lacked standing to petition to set aside the tax sale pursuant to 

Section 607(b) of the RETSL. Moore, 98 A.3d at 3 (citing 72 P.S. §§ 5860.102, 

5860.607(b)). On appeal, we reversed common pleas’ decision. We reasoned:

The Section 102 definition of “owner” is relevant to whether the 

[tax bureau] was required to provide [the executrix] with notice of a 

real estate tax sale conducted pursuant to Section 602 of the [RETSL]. 

As demonstrated by Husak, whether [the executrix] had standing to 

challenge the tax sale is based upon whether she had the requisite 

substantial, direct, and immediate interest in the sale of property to 

qualify as an aggrieved party. [Husak,] 61 A.3d at 309-10. At the time 

of the tax sale, [the executrix] had been living at the [p]roperty 

for 18 years and had invested substantial sums in capital improvements 
12

and had been paying the tax bill. . . . Although [the executrix] is not an 

“owner” as defined by the [RETSL] because her name is not on the last 

registered deed to the [p]roperty, she is an equitable owner of the 

[p]roperty as a devisee[,] . . . [and] [w]e conclude that [the executrix], 

as an equitable owner, has the requisite substantial, direct and 

immediate interest in the sale of property to challenge a tax sale.

Id. at 4.

Tax Sale Purchaser argues that the facts and law in Husak, Moore, and Shipley

are easily distinguishable and should not apply to Objectors’ situation in this case. 

He argues that, in Husak, we concluded that the petitioners were owners as defined 

by Section 102 of the RETSL because they “were in open, peaceful and notorious 

possession of the property for many years prior to the sale and were in possession of 

an unrecorded Quit Claim Deed executed by the immediately previous titleholder, 

Fannie Mae.” (Tax Sale Purchaser’s Brief at 11.) He submits that, in Moore, we 

granted standing to the executrix based on her being a specific devisee of the 

deceased record owner and that, when her mother died in 1999, no decedent estate 

was ever opened for her prior to the tax sale in September 2012. (Id. at 11, 12.) 

Tax Sale Purchaser argues that we reversed because, “as a specific devisee 

(as contrasted to merely an intestate heir) under her mother’s will, legal title to that 

property passed at her death to the [t]estatrix . . . . This all occurred well before the 

date of the upset tax sale.” (Id. at 12.) Finally, he notes that, in Shipley, we granted 

the wife standing because of her “inchoate and contingent right to equitable 

distribution in the subject property under . . . Pennsylvania[’s] Divorce Code”4 based 

on the fact of her marriage, purchase of the property, and contribution of joint funds 

to purchase the property, which occurred long before the upset tax sale. (Id.)

Tax Sale Purchaser instead directs our attention to this Court’s decision in 

Fongsue v. Tax Claim Bureau of Delaware County and Roland Oris (Pa. Cmwlth., 

4 23 Pa. C.S. §§ 3101-3904.
13

No. 1229 C.D. 2007, filed January 5, 2009) (Oris), appeal denied, 981 A.2d 221 

(Pa. 2009).5 There, the purchaser of a property at an upset tax sale, Roland Oris 

(Oris), appealed the order of the Court of Common Pleas of Delaware County that 

granted a petition to set aside the upset tax sale. Oris, slip op. at 1. In January 1956, 

a deed was recorded for the property naming Oscar and Louise Boozer as owners. 

Id., slip op. at 1, 2. Both owners died intestate in the 1990s. Id., slip op. at 2. 

In September 2002, the Delaware County Board of Assessment changed the mailing 

address for notices concerning the property to Ronald Boozer (Boozer), the elder 

Boozers’ only child, who lived in Baltimore, Maryland. Id. As of that date, no 

executor or administrator of Louise Boozer’s estate had been appointed by the 

Register of Wills of Delaware County. Id.

In the summer of 2006, the property was vacant and Boozer placed the 

property on the market. Id., slip op. at 3. Sometime before July 19, 2006, the 

Tax Claim Bureau of Delaware County sent three separate notices of public sale to 

Boozer in Baltimore, and he signed for all three notices on the certified mail return 

receipt cards. Id., slip op. at 2. A notice of public sale was posted on the property 

on July 25, 2006, and the property was among those listed for tax sale in three area 

newspapers. Id. On August 4, 2006, a notice of public sale was sent to Boozer in 

Baltimore, and the notice was not returned as undeliverable. Id. That same day, 

Boozer and Fongsue executed a standard agreement for the sale of real estate, with 

the closing scheduled to take place on September 6, 2006. The closing did not take 

place on September 6, 2006, and it was rescheduled to September 22, 2006, because 

Boozer failed to obtain Letters of Administration on behalf of Louise Boozer. Id. 

5 Pursuant to Commonwealth Court Internal Operating Procedure Section 414(a), 210 Pa. 

Code § 69.414(a), an unreported opinion of the Court filed after January 15, 2008, may be cited 

only “for its persuasive value, but not as binding precedent.” 
14

In the interim, Oris purchased the property for the upset tax sale price on 

September 13, 2006. Id. At the closing between Boozer and Fongsue held on 

September 22, 2006, Fongsue paid $89,000.00 in consideration for the property, plus 

closing costs. Id. Immediately after the closing, a check was tendered for past taxes 

due to the tax bureau. Id.

Fongsue filed a petition to set aside the upset tax sale in November 2006, and 

common pleas granted the petition in May 2007, concluding that Fongsue had 

standing because “she was an aggrieved party with an interest in the [p]roperty and 

deserved legal protection.” Id., slip op. at 4. Common pleas reasoned that because 

the owners of the property were deceased and could not receive notice of the sale, 

the provisions of Section 607.1 of RETSL,6 72 P.S. § 5860.607a, were triggered, and 

the tax bureau did not use reasonable effort to discover the whereabouts of the 

owners. Id.

Oris, on appeal, contended that Fongsue lacked standing because she was not 

the owner of the property at the time of the tax sale and Boozer’s interest had already 

been divested by the tax sale when he delivered the deed to Fongsue. Id., slip op. 

at 4, 5. We reversed common pleas and concluded that, pursuant to Section 102 of 

the RETSL, Fongsue was neither an owner nor a lien holder of the property at the 

time of the upset tax sale. Id., slip op. at 5. We noted that Fongsue “has not pointed 

to any statute or case law which expands the definition of owner to include an 

equitable owner.” Id., slip op. at 7. “The trial court erred when it determined 

Fongsue had standing.” Id.

We relied on this Court’s decision in First Horizon, where we addressed a 

similar situation. First Horizon Home Loan Corporation (First Horizon) was the 

6 Added by the Act of July 3, 1986, P.L. 351.
15

holder of a mortgage federally insured by the Department of Housing and Urban 

Development (HUD) on property located in Adams County. First Horizon, 

847 A.2d at 775. After the mortgage fell into default, First Horizon acquired 

ownership of the property through foreclosure and obtained a deed to the property 

in March 2002. Id. The deed was recorded the same day. Id. In July 2002, the 

Adams County Tax Claim Bureau sent a notice of public tax sale to First Horizon 

stating that the property was scheduled for sale on September 13, 2002, due to unpaid 

real estate taxes for the year 2000. Id. First Horizon received the notice. Id.

In August 2002, First Horizon conveyed the property to HUD in accordance 

with applicable federal regulations. Id. The deed from First Horizon to HUD was 

recorded that same month, but First Horizon did not contact the tax bureau 

concerning the September 13, 2002 tax sale and the transfer of the property to HUD. 

Id. The property was sold at a tax sale on September 13, 2002. Id. at 775. 

First Horizon filed objections and exceptions to the tax sale pursuant to 

Section 607 of the RETSL, asserting that the tax sale must be set aside because 

proper notice was not provided to HUD, the owner of the property on the date of the 

sale. Id. The tax bureau argued, in relevant part, that First Horizon lacked standing 

to file objections to the tax sale. Id. at 776. Common pleas, after a hearing on 

First Horizon’s objection to the tax sale, concluded that First Horizon lacked 

standing because, under Section 607 of the RETSL, it was neither an owner nor a 

lien creditor. Id. First Horizon appealed. Id. We concluded, in pertinent part, that 

there was no statutory basis to support First Horizon’s claim to standing, and 

common pleas properly held that First Horizon lacked standing to contest the sale. 

Id. at 777.
16

Recently, in Matos v. Berks County Tax Claim Bureau, 228 A.3d 976 

(Pa. Cmwlth. 2020), we held that an option to purchase a leased property creates an 

equitable interest in a tenant who holds such an option. In Matos, two tenants entered 

into a “rent to own” agreement with the owner of the property paying a down 

payment of $7,000.00, $850.00 a month to rent the property, and $250.00 a month 

toward the purchase of the property. Matos, 228 A.3d at 978. The lease agreement 

expired on March 30, 2018. Id. The property was sold at a tax sale to the purchaser 

in September 2018. Id. The tenants challenged the sale based on the tax claim 

bureau not complying with the strict notice requirements of the RETSL and asserted 

they had standing based on the lease agreement that included an option to purchase 

the property. Id. The Court of Common Pleas of Berks County held that the tenants 

lacked standing to challenge the tax sale because their lease agreement expired 

before the tax sale, and it dismissed the case based on the pleadings. Id. The tenants 

appealed. Id.

We reversed common pleas’ decision concerning the tenants’ standing and 

remanded the case for further proceedings. Id. at 982. After reviewing our decisions 

in Shipley and Husak, we noted that “Pennsylvania courts have long held that an 

option to purchase land conveys a substantial and legally recognized equitable 

interest in the optionee,” using the Pennsylvania Supreme Court’s decision in 

Detwiler v. Capone, 55 A.2d 380 (Pa. 1947), as an example. We noted our Supreme 

Court’s decision in Detwiler, wherein that court observed:

An option to purchase is analogous to a contract for the sale of 

land; it is in nature an encumbrance on the land pledged. In such case 

the [optionor] is a trustee of the legal title for the benefit of the 

purchaser. . . . Equity regards the person bound to convey as having 

done what he should have done, i.e.[,] made the conveyance, and treats 

him as trustee for the optionee. Where an option is exercised the title 
17

to the optionee relates back to the date of the option and his interest is 

regarded as real estate of that time[.]

Matos, 228 A.3d at 981 (quoting Detwiler, 55 A.2d at 383) (internal quotation marks 

and citations omitted). Based upon that reasoning, we concluded that the tenants 

asserted a substantial, immediate, and direct interest in the property because they 

hold an option to purchase the property and paid $18,000.00 toward the purchase. 

Id. We determined that common pleas erred by focusing on the expiration of the 

lease agreement, “which did not extinguish [the t]enants’ equitable interest in the 

property[,] . . . [and] [t]he equitable interest created by the option agreement will 

relate back to the date of the option.” Id.

Here, Common Pleas concluded that Objectors were equitable owners of the 

Property at the time of the upset tax sale due to their execution of an agreement to 

purchase the Property prior to the closing on September 13, 2018. Common Pleas 

did so without having created an evidentiary record, presumably having relied on

the pleadings and affidavits. In support of Common Pleas’ disposition of the matter 

at this stage of the proceedings, Objectors contend that Tax Sale Purchaser failed to 

verify his response to the Petition or challenge Objectors’ affidavits and, as a result, 

admitted all the facts in the Petition and lost the opportunity to make a later factual 

challenge via an evidentiary hearing. We disagree.

In Battisti v. Tax Claim Bureau of Beaver County, 76 A.3d 111, 113 

(Pa. Cmwlth. 2013), we determined that the Pennsylvania Rules of Civil Procedure 

did not apply to proceedings under Section 607 of the RETSL because they are not 

civil actions; the term “pleading” as used in the Rules of Civil Procedure “is a term 

of art that does not include a petition filed under Section 607 of the [RETSL].”7 

7

In Battisti, the appellant (taxpayer) paid her 2008 school district taxes six days late 

causing her payment to be short $6.30 in interest. Battisti, 76 A.3d at 112. The taxpayer later paid 

(Footnote continued on next page...)
18

Id. at 115. We further concluded that there was no mechanism that allowed a petition 

filed pursuant to Section 607 to be decided on the petition and answer and that the 

“pleadings” were not closed when the motion for judgment on the pleadings was 

filed.8 Id. We determined that denying the objections to the upset tax sale without 

an evidentiary hearing was a denial of due process to the taxpayer. Id.

Based upon Battisti, we are persuaded that Common Pleas erred in relying on 

the pleadings and affidavits as evidence of the circumstances surrounding Objectors’ 

purchase (or attempted purchase) of the Property for purposes of determining 

whether Objectors were equitable owners at the time of the upset tax sale rather than 

conducting an actual evidentiary hearing.

B. Legal Owners

Objectors offer an alternate basis for standing, not directly addressed by 

Common Pleas or Tax Sale Purchaser—i.e., legal ownership of the Property. 

Objectors argue that they acquired status as legal owners of the Property when 

Prior Owner executed and delivered the deed to them on September 11, 2018 

(i.e., two days before the tax sale of the property). Objectors submit:

her 2009 taxes, but the $6.30 delinquency for the 2008 taxes remained unpaid, leading to the tax 

claim bureau selling her home in an upset tax sale. Id. The taxpayer challenged the upset tax sale, 

arguing that she did not have notice that her payment for the 2008 taxes was short by $6.30, and 

she did not have notice of the scheduled upset tax sale. Id. The taxpayer’s petition named the 

purchaser of the property and the tax claim bureau as respondents. Id. at 113. The court of 

common pleas, without holding a hearing, granted the purchaser’s motion for judgment on the 

pleadings and dismissed the petition to set aside the upset tax sale. Id. The taxpayer appealed. Id.

8 For example, some counties utilize standing orders or local rules to specify the procedures 

for petitions challenging an upset tax sale. If a court of common pleas chooses to have the 

Pennsylvania Rules of Civil Procedure apply to this type of statutory proceeding, it can certainly 

make that known through a standing order or a local rule. In this case, neither party has asserted 

that a standing order or a local rule exists that allows a party to file the equivalent of a motion for 

judgment on the pleadings to dismiss the case. In the absence of such an order or local rule, we 

will follow our decision in Battisti.
19

Under Pennsylvania law, title to real estate may be passed by 

execution and delivery of a deed, before or even without recording it. 

In re Estate of Pentrack, 405 A.2d 879 (Pa. 1979); Sovereign Bank v. 

Harper, 674 A.2d 1085 (Pa. Super. [] 1996). The delivery of the deed 

for real property is necessary to render it legally operative and to 

convey title. Herr v. Bard, . . . 50 A.2d 280 ([Pa.] 1947); Atiyeh v. Bear, 

. . . 690 A.2d 1245 [(Pa. Super.), appeal denied, 698 A.2d 63 

(Pa. 1997)]); Hogue v. Hogue, . . . 174 A. 598 ([Pa. Super.] 1934).

Significantly, legal title to real property passes from a grantor to 

a grantee as of the date of delivery of the deed thereto. Malamed v. 

Sedelsky, . . . 80 A.2d 853 ([Pa.] 1951). It is not necessary that delivery 

of a deed should be made to the grantee himself or herself, but rather, a 

delivery to a third person (e.g., a settlement agent) for the grantee may 

constitute a valid delivery sufficient to pass title. Fiore v. Fiore, . . . 

174 A.2d 858 ([Pa.] 1961); In re: Rynier’s Estate, . . . 32 A.2d 736 

([Pa.] 1943); DiMaio v. Musso, 762 A.2d 363 ([Pa. Super.] 2000); 

In re Padezanin, 937 A.2d 475 (Pa. Super. [] 2007).

(Objectors’ Brief at 12, 13.) A close examination of the four Pennsylvania Supreme 

Court cases Objectors rely upon is warranted.

First, in In re Estate of Pentrack, the decedent’s nephew was appointed 

administrator of the decedent’s estate. In re Estate of Pentrack, 405 A.2d at 880. 

The decedent’s brother and sister-in-law conveyed property to the decedent by a 

deed in April 1962, but the deed was never recorded. Id. Decedent, several months 

before he died, gave the deed to his nephew with instructions to return the property 

back to his brother by destroying the deed when he died. Id. The nephew did not 

destroy the deed. Id. Instead, the nephew filed a petition for a declaratory judgment, 

which, in pertinent part, sought a determination of whether the title to the property

was legally conveyed by the decedent back to the decedent’s brother and the

brother’s wife. Id. The Orphans’ Court division of the Court of Common Pleas of 

Cambria County held there was no gift of real estate back to the brother and 

sister-in-law and that the property remained with the estate. Common pleas, upon 

review en banc, determined that there was a gift of the real estate and the property 
20

was conveyed back to the brother and sister-in-law. Id. The nephew appealed the 

en banc decision. Id.

The Pennsylvania Supreme Court determined that because title to real estate 

may be passed by delivery of a deed without recording it, the 1962 conveyance of 

the property gave title to the decedent. Id. (citing Malamed, 80 A.2d at 853). 

The Supreme Court, however, determined that decedent’s attempt to re-convey the 

title to his brother and sister-in-law at the time of his death violated Section 4 of 

what is referred to as the Statute of Frauds, Act of April 22, 1856, P.L. 532, 33 P.S. 

§ 2, and that “[a]n agreement to sell land not signed by the seller or an agent cannot 

be enforced against the seller.” Id. The Pennsylvania Supreme Court concluded 

that, because there was not a writing signed by decedent re-conveying the property, 

the property remained with the estate. Id. Accordingly, we agree with Objectors 

that title to real estate may be passed by execution and delivery of a deed, before or 

even without recording it.

Second, in Herr, the plaintiffs were two sisters who filed a bill in equity 

seeking to compel their other sister, the defendant, to: (1) produce and record two 

deeds for three tracts of land in Lancaster County; (2) declare two deeds covering 

part of the same property null and void; and (3) enjoin the defendant from selling or 

in any way disposing of the real estate. Herr, 50 A.2d at 281. The chancellor, after 

a hearing on the bill and answer, found against the plaintiffs. Id. The Court of 

Common Pleas of Lancaster County, en banc, dismissed the plaintiffs’ exceptions 

and affirmed the chancellor’s decision. Id. The plaintiffs appealed, arguing, in 

relevant part, that the chancellor erred in finding that there was no delivery of the 

deed conveying the home property and the thirteen-acre tract even though the deed 
21

was executed and acknowledged by their father in 1935. Id. The Pennsylvania 

Supreme Court wrote:

It is well established that delivery of a deed is necessary in order 

to render it legally operative . . . and that delivery is to be inferred from 

grantor’s words and acts evidencing an intention on his part to surrender 

his title to the property embraced by his conveyance, and to invest his 

grantee therewith . . . . It is the general rule that there is a presumption, 

in the absence of proof to the contrary, that a deed was executed and 

delivered on the day it was acknowledged.

Id. at 281, 282 (citations omitted). The Supreme Court concluded that the grantor, 

by keeping the deed, did not intend to divest himself of the title to the home property 

and thirteen acres, and it affirmed common pleas’ decision. Id. at 282. Accordingly, 

we agree with Objectors that the delivery of the deed for real property is necessary 

to render it legally operative and to convey title.

Third, in Malamed, the defendants purchased a property in Philadelphia by 

paying the down payment and taking title in the name of one of the defendant’s 

brothers, who was a veteran, in order to obtain a mortgage through the Veteran’s 

Administration. Malamed, 80 A.2d at 854. The defendant’s brother obtained a 

mortgage for the property, “but all of the purchase price over and above the 

mortgage, as well as the adjustment expenses at settlement, were paid by the 

[defendants,] who entered into and remained in the exclusive possession of the 

premises.” Id. The deed to the defendant’s brother was dated and recorded in 

February 1947, and in June 1949, he executed and delivered a deed for the premises 

to the defendants. Id. The deed was not recorded until December 1949. Id. 

The defendant’s brother, after delivery of the deed to the defendants but before it 

was recorded, executed a judgment note in favor of the plaintiff, and judgment was 

entered in October 1949. Id. The judgment was executed, and the sheriff sold the 
22

property to the plaintiff, as judgment creditor, in July 1950, with the deed delivered 

to the plaintiff in due course. Id. The plaintiff filed an action for possession and to 

quiet title. The Court of Common Pleas of Philadelphia County entered judgment 

for the plaintiff, reasoning that a trust against judgment creditor, mortgagees, or 

purchasers is void unless a written declaration of trust by the holder of legal title has 

been recorded. Id. The defendants appealed.

On appeal, the Pennsylvania Supreme Court, in relevant part, reversed the 

common pleas’ decision, concluding that the “trust was completely executed by the 

delivery of an unrecorded deed by [the defendant’s brother] to defendants before the 

plaintiff had become a creditor of [the defendant’s brother] . . . .” Id. at 854

(emphasis in original). The Supreme Court further concluded that the defendants 

were not relying on “equitable title but upon a legal title established by the delivery 

of a prior unrecorded deed.” Id. at 856. “Delivery is all that is necessary to pass 

title, recording is only essential to protect by constructive notice any subsequent 

purchasers, mortgagees and new judgment creditors.” Id. (emphasis in original).

Accordingly, we agree with Objectors that legal title to real property passes from a 

grantor to a grantee as of the date of delivery of the deed thereto.

Finally, in Fiore, the husband-grantor, during his lifetime, executed a deed to 

his wife-grantee, conveying his interest in lands in Allegheny County. 

Fiore, 174 A.2d at 859. In September 1940, the husband asked an attorney to 

prepare a deed for purposes of recording. Id. At that time, the deed was executed, 

witnessed, and acknowledged. Id. The husband died in September 1942. Id. 

The deed was not recorded until November 1957, long after the husband’s death, 

when the wife became aware of the transaction after the deed was rediscovered. 

Id. at 860. His son, the plaintiff, instituted an action in equity in the Court of 
23

Common Pleas of Allegheny County against decedent’s wife, the defendant, to 

obtain judicial nullification of the deed. The chancellor dismissed the complaint,

and common pleas, en banc, granted a final decree in favor of the defendant. 

Id. at 859. The plaintiff appealed. Id.

The Pennsylvania Supreme Court summarized the relevant law as follows:

In order to validate defendant’s claim to the ownership of 

the property involved[,] there are two indispensable requisites: 

(1) a donative intent upon the part of the grantor, i.e., an intent to make 

a gift to the grantee then and there, when the deed was executed; [and] 

(2) a delivery of the deed to the grantee, either actual or constructive, 

which divested the donor of all dominion over the property and invested 

the donee therewith. The recording of the deed was not essential to its 

validity or transaction of the title. Nor was it essential that the grantee 

have knowledge of the transaction. By subsequent acceptance, she 

ratified the original delivery if such occurred. 

However, there must have been a delivery of the instrument to 

the grantee and while the execution, sealing, acknowledging, and 

recording of a deed gives rise to a presumption of delivery, this is a 

factual presumption and as such, is rebuttable.

For a legal delivery to be effected, it is not necessary that the 

deed be delivered directly to the grantee. It may be placed in the 

possession of a third party for delivery to the grantee upon the 

happening of a specified contingency. In such cases, the delivery date 

is that when the donor effectuated his intention.

Id. at 859-60 (citations omitted). The Supreme Court reasoned that based on the 

record, the husband “continued his complete control over the property until his death 

. . . [and] [a]t no time did he tell the grantee in the deed, or any members of his 

family, that he had deeded over his interest to the defendant.” Id. at 860. 

The Supreme Court reversed the decree and directed common pleas to enter a decree 

in favor of the plaintiff. Id. at 861. Accordingly, we agree with Objectors that it is 

not necessary that delivery of a deed be made to the grantee himself or herself, but 
24

rather, a delivery to a third person (e.g., a settlement agent) for the grantee may 

constitute a valid delivery sufficient to pass title.

For the reasons set forth above, a determination based on the pleadings and 

affidavits as to whether Objectors were legal owners at the time of the upset tax sale 

based on having allegedly received the deed to the Property prior to the 

September 13, 2018 upset tax sale would be improper. An evidentiary hearing is 

required to resolve this issue.

C. Due Process

We now address Tax Sale Purchaser’s argument that Common Pleas abused 

its discretion when it denied him due process of law by granting the Petition without 

an evidentiary hearing. Tax Sale Purchaser argues that Common Pleas abused its

discretion when he was denied the opportunity to produce evidence that Prior Owner 

was provided with the notice of sale prescribed by Section 602 of the RETSL and 

that Prior Owner had actual notice of the upset tax sale prior to September 13, 2018. 

Common Pleas did not address this issue in its Pa. R.A.P. 1925(a) opinion.

“It is the trial court’s exclusive province, as fact-finder, to evaluate evidence 

adduced at the proceedings, make credibility determinations, and draw inferences 

from the evidence presented.” In re Consolidated Reps. & Return by Tax Claims 

Bureau of Northumberland Cnty. of Props., 132 A.3d 637, 644 (Pa. Cmwlth.) 

(Northumberland Cnty.) (en banc), appeal denied, 141 A.3d 482 (Pa. 2016).

“‘Pennsylvania courts have long recognized the broad discretion of the fact-finding 

[t]rial [c]ourt . . . .’” Id. (quoting Brady v. Borough of Dunmore, 479 A.2d 59, 62 

(Pa. Cmwlth. 1984)). As our Supreme Court explained:

“[J]udicial discretion” requires action in conformity with law on facts 

and circumstances before the trial court after hearing and due 

consideration . . . . An “abuse of discretion” or failure to exercise sound 

discretion is not merely an error in judgment. But if, in reaching a 
25

conclusion, [the] law is overridden or misapplied, or the judgment 

exercised is manifestly unreasonable or lacking in reason, discretion 

must be held to have been abused.

Northumberland Cnty., 132 A.3d at 653 (quoting In re Deed of Trust of Rose Hill 

Cemetery Ass’n Dated Jan. 14, 1960, 590 A.2d 1, 3 (Pa. 1991)).

“Our Supreme Court has emphasized that due process under both the 

United States and Pennsylvania Constitutions must be satisfied whenever the 

government subjects a citizen’s property to forfeiture for nonpayment of taxes.” 

Battisti, 76 A.3d at 113. Further:

[A] taxing authority’s strict compliance with the tax law does not 

necessarily satisfy the demands of due process. There can be no 

deprivation of property without notice and an opportunity to be heard. 

Interests in real property [are] entitled to the most rigorous 

[due process] protections. Where a question of fact is raised, a hearing 

is necessary because [w]ithout a full hearing on the matter, the door 

might be opened to fraud.

Once [the t]axpayer presented a prima facie challenge to the tax 

sale, it became the burden of the [t]ax [c]laim [b]ureau to prove strict 

conformance with the notice provisions of the [the RETSL]. The [t]ax 

[c]laim [b]ureau’s answer and [the p]urchaser’s answer and new matter 

raised a dispute on the central factual question, i.e., whether 

[the t]axpayer was given the notice required for an upset tax sale to be 

valid under the [RETSL] and under the Due Process Clause found in 

the United States and Pennsylvania Constitutions.

Battisti, 76 A.3d at 116 (citations omitted). We vacated the common pleas order 

granting the purchaser’s motion for judgment on the pleadings, and we remanded 

the matter for an evidentiary hearing. Id. at 116-17.

Here, we agree with Tax Sale Purchaser that Common Pleas abused its

discretion when it denied him the opportunity to produce evidence at an evidentiary 

hearing. Common Pleas denied Tax Sale Purchaser an opportunity to present 

evidence in support of his contentions that Prior Owner was provided with the notice 

of sale prescribed by Section 602 of the RETSL and that Prior Owner had actual 
26

notice of the upset tax sale prior to September 13, 2018. As a result, Tax Sale 

Purchaser did not receive the due process to which he is entitled. See Battisti.

IV. CONCLUSION

For the above reasons, we vacate Common Pleas’ order and remand the matter

to Common Pleas with direction that it conduct an evidentiary hearing. During that 

hearing, the parties may present evidence regarding Objectors’ standing and whether

the Bureau complied with the requirements of RETSL, including evidence relating 

to notice received by Prior Owner and the Bureau’s attempts to notify Prior Owner 

of the upset tax sale.

P. KEVIN BROBSON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Amy Nguyen and Kenny Pham :

:

v. : No. 393 C.D. 2020

:

Delaware County Tax Claim :

Bureau and Chadd Neumann :

:

Appeal of: Chadd Neumann :

O R D E R

AND NOW, this 29th day of December, 2020, the order of the Court of 

Common Pleas of Delaware County (Common Pleas), dated January 15, 2020, is 

VACATED, and the matter is REMANDED to Common Pleas with instructions that 

Common Pleas conduct an evidentiary hearing and issue a new decision and order.

Jurisdiction relinquished.

P. KEVIN BROBSON, Judge